Common use of Asset Purchase Clause in Contracts

Asset Purchase. (a) Upon the terms and subject to the conditions set forth in this Agreement, at the Asset Closing, the Company shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall, and/or shall cause its Subsidiaries to, purchase, acquire and accept from the Company and its Subsidiaries, free and clear of all Liens other than Permitted Liens, all of the Company’s and such Subsidiaries’ respective right, title and interest in and to the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”): (i) the Owned Real Property (as defined in the Merger Agreement) and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS Business; (ii) all inventories (including raw materials, purchased goods, parts, containers, recycled materials, work in process, supplies, finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, tools, spare parts, all transportation and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any and all hard drives, disks, diskettes, tapes or other tangible media), and in the case of any such items which are leased or licensed by the Company or its Subsidiaries, the Company’s and such Subsidiaries’ leasehold or license interest therein; (v) all Contracts to which any of the Company or its Subsidiaries are a party to the extent they are related to the SMS Business, including the SMS Agreements (collectively, the “Assumed Contracts”); (vi) all Intellectual Property owned by the Company and its Subsidiaries and that is related to the SMS Business and was used, is used or is held for use in the SMS Business (the “Transferred Business Intellectual Property”); (vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS Business; (viii) all Permits used in the SMS Business; (ix) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (x) all deposits to the extent made by the Company or its Subsidiaries in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to other Assumed Liabilities; (xi) all prepaid assets paid by the Company or its Subsidiaries to the extent in connection with the SMS Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to Assumed Liabilities; (xii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed Liabilities; (xiii) all financial and other books and all other documents, microfilm and business records (other than Tax Returns) and correspondence, wherever located, related to the SMS Business, the Purchased Assets or the Assumed Liabilities; (xiv) personnel records for each Transferred SMS Employee (subject to the prior consent of such Transferred SMS Employee to the extent such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employee); and (xv) all other assets of the Company and its Subsidiaries that relate to, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in the conduct of, the Maintenance Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c).

Asset Purchase. (a) Upon At the Closing and upon the terms and subject to the conditions set forth in this Agreementcontained herein, at each of the Asset Closing, the Company shall, and Business Sellers shall cause its Subsidiaries to, sell, transfer, assign, transfer, convey and deliver to Purchaserthe Buyer, and Purchaser shall, and/or the Buyer shall cause its Subsidiaries to, purchase, acquire and accept from the Company and its Subsidiaries, free and clear of all Liens other than Permitted Lienseach Business Seller, all of the Company’s and such Subsidiaries’ respective right, title and interest in and to all property and assets (other than the following assets and all Excluded Assets) of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”): (i) the Owned Real Property (as defined in the Merger Agreement) and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property such Business Seller that relate to or are used or held for use in connection with the SMS Business; (ii) all inventories (including raw materials, purchased goods, parts, containers, recycled materials, work in process, supplies, finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, tools, spare parts, all transportation and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any and all hard drives, disks, diskettes, tapes or other tangible media), and in the case of any such items which are leased or licensed by the Company or its Subsidiaries, the Company’s and such Subsidiaries’ leasehold or license interest therein; (v) all Contracts to which any of the Company or its Subsidiaries are a party to the extent they are related to the SMS Business, including the SMS Agreements (collectively, the “Business Assets”), free and clear of all Liens (other than Permitted Liens), wherever located and whether or not said Business Assets appear or are reflected upon the books and records of such Business Seller, which Business Assets shall include the following: (a) all work in process, processed or finished goods, raw material and other items of inventory or goods held for sale; (b) all machinery, equipment, vehicles, furniture, fixtures, leasehold improvements, computer and computer-related equipment (including servers), tools, parts, supplies and other personal property; (c) all rights that the Business Sellers may have under any and all Contracts, including any Property Management Agreements, Declarations and Rental Agency Appointment Agreements to which any Business Seller is a party (the “Assumed Business Contracts”); (vid) all Intellectual Property owned by Property, including all goodwill associated therewith and the Company right to prosecute and its Subsidiaries and that is related to the SMS Business and was usedrecover damages for any past, is used present or is held for use in the SMS Business (the “Transferred Business Intellectual Property”); (vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS Business; (viii) all Permits used in the SMS Business; (ix) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any future violations of the foregoing; (xe) all deposits computer and information technology systems (including any Software or hardware used in connection therewith); (f) all telephone numbers, fax numbers, email addresses, directory listings, advertising, business forms, files, documents and books and records, in each case, relating to the extent made by other Business Assets, including, customer lists, customer prospect lists, customer addresses, delivery schedules, supplier lists, mailing lists, promotional materials and purchasing materials; (g) all rights of the Company Business Sellers in and to all internet domain names (whether in use or its Subsidiaries in connection with the SMS Businessnot) and social media account registrations, and any claim, remedy or other right related to any and all goodwill associated therewith and all of the foregoing, Business Sellers’ rights in each case to the extent content at the websites and social media sites located at or associated with Assumed Contracts of such domain names or other Purchased Assets, or related to other Assumed Liabilitiessocial media account registrations; (xih) all prepaid assets paid by the Company or its Subsidiaries to the extent in connection with the SMS Businessforms, advertising material, and any claimsales and marketing files, remedy or other right related to any of the foregoingincluding current promotion copy and promotion copy data bases, in each case to the extent associated with Assumed Contracts or other Purchased Assetsweb images, or related to Assumed Liabilitiesweb copy and marketing materials; (xiii) all rights of any Business Seller in and to the Licenses and Permits relating to the Business; (j) all causes of action, claims, demandswarranties, guarantees, refunds, rights (of recovery and set off of every kind and character, including rights and claims against suppliers and customers and insurance claims (other than those relating solely to Excluded Assets or Excluded Liabilities); (k) all rights under or pursuant to warranties, representations indemnities and guarantees made by suppliers, manufacturers or contractors) and privileges similar rights against third partiesparties (other than those relating to Excluded Assets); (l) the amount of, whether liquidated and any and all rights to, any insurance proceeds received by any Business Seller after the date hereof in respect of any loss, destruction or unliquidatedcondemnation of any Business Assets occurring prior to or after the Closing or relating to any Assumed Liabilities; (m) all interests in any real property, fixed or contingentincluding the Resorts, any Timeshare Interests owned by any Business Seller, the Ground Lease Property and the ▇▇▇▇ ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or Project; provided, however, that, upon the written request of the Buyer prior to the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed Liabilities; (xiii) all financial and other books and all other documents, microfilm and business records (other than Tax Returns) and correspondence, wherever located, related to the SMS BusinessClosing, the Purchased Assets or Business Sellers shall terminate the Assumed Liabilities; (xiv) personnel records for each Transferred SMS Employee (subject to the prior consent of such Transferred SMS Employee to the extent such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employee); and (xv) all other assets of the Company and its Subsidiaries that relate to, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made by the Company or its Subsidiaries to the extent related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇ ▇▇▇▇▇▇ Project and Contracts related thereto and any Liabilities resulting from the ▇▇▇▇ ▇▇▇▇▇▇ Project or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreementstermination thereof shall be Excluded Liabilities; (viiin) all other current assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in Business Sellers set forth on Schedule 1.1(n) (the conduct of, the Maintenance Business“Current Assets”); and (ixo) any assets the Business as a going concern and all goodwill associated with the Business (including elements of goodwill, such as the workforce in place, covenants not to compete, patents and trademarks). At the Closing and upon the terms and subject to the conditions contained herein, PHR shall sell, transfer, assign, convey and deliver to the Buyer, and the Buyer shall purchase, acquire and accept from PHR, all right, title and interest in and to all Property Management Agreements that are excluded from PHR is a party (the Purchased Assets pursuant to Section 3.1(c“PHR Management Contracts”), free and clear of all Liens (other than Permitted Liens).

Asset Purchase. (a) Upon On the terms and subject to the conditions set forth in this Agreement, at the Asset ClosingPurchaser shall purchase from the Company, and the Company shallshall sell, and shall cause its Subsidiaries to, sellconvey, assign, transfer, convey transfer and deliver to Purchaserthe Purchaser on the Closing Date, all of the Company's right, title and Purchaser shallinterest as of the Closing Date in all of its properties, and/or shall cause its Subsidiaries toassets and rights of any kind, purchasewhether tangible or intangible, acquire and accept from real or personal (but excluding the Company and its SubsidiariesExcluded Assets) (the "Purchased Assets"), free and clear of all Liens other than liens (except Permitted Liens), all charges, security interests, encumbrances and restrictions of the Company’s and such Subsidiaries’ respective rightwhatever nature, title and interest in and to the following assets and all of the goodwill associated therewith (in each case after taking into account the effects ofincluding, and assuming the completion ofbut not limited to, the Restructuring), as the same shall exist on the Asset Closing Date (collectively, the “Purchased Assets”):following: (i) the Owned Real Property (as defined in the Merger Agreement) all accounts and any fixtures, machinery, equipment and tangible personal property attached to or located on the Owned Real Property that relate to or are used or held for use in connection with the SMS Businessnotes receivable; (ii) cash, cash equivalents, certificates of deposit, marketable securities, bank accounts and similar items; (iii) any employee benefit plan, program, policy or arrangement of the Company set forth in the Benefits Plan Schedule, including any assets in any related trusts, other than any such employee benefit plan, program, policy or arrangement identified on the Excluded Assets Schedule attached hereto; (iv) all inventories (including finished goods inventories, raw materials, purchased goods, parts, containers, recycled packaging materials, work in process, supplies, consigned goods and finished goods and demo and consignment inventory) on the books of the Company or its Subsidiaries; (iii) all lists of current, former and prospective customers, suppliers, resellers and vendors, customers’ files, credit information, parts lists, business correspondence, business lists, brochures, manuals, sales literature, promotional literature and other selling, advertising and marketing materials and all other similar assets and rights related to the conduct of the SMS Business; (iv) all of the machinery, equipment, tools, spare parts, all transportation and office equipment, computers, furniture, furnishings, vehicles, and other fixed assets and personal property owned by the Company and its Subsidiaries and related to, used or held for use in connection with the SMS Business (including any warehoused inventories, inventories covered by purchase orders and all hard drives, disks, diskettes, tapes or other tangible mediagoods in transit), and in the case of any such items which are leased or licensed by the Company or its Subsidiarieswherever located (collectively, the Company’s and such Subsidiaries’ leasehold or license interest therein"Inventory"); (v) all Contracts Proprietary Rights owned by, issued to or licensed to the Company and which any are necessary for or related to or used in the operation of the business of the Company as conducted on the Closing Date, along with all income, royalties, damages and payments due or its Subsidiaries are a party payable as of the Closing Date or thereafter (including damages and payments for past, present or future infringements or misappropriations thereof, the right to ▇▇▇ and recover for past infringements or misappropriations thereof and any and all corresponding rights that, now or hereafter, may be secured throughout the extent they are related to the SMS Businessworld), in each case including the SMS Agreements items set forth on the attached "Proprietary Rights Schedule" (collectively, the “Assumed Contracts”"Purchased Proprietary Rights"); (vi) all Intellectual Property owned by of its contracts, licenses, leases and other agreements, including those described on the Company attached Contracts Schedule and its Subsidiaries and that is related to all security deposits relating thereto (collectively, the SMS Business and was used, is used or is held for use in the SMS Business (the “Transferred Business Intellectual Property”"Assumed Contracts""); (vii) all information technology systems, network or telecommunications equipment and software, desktop computer software, accounting, finance and database software, general software development and control systems, and tools, environments and other general information technology functionality, in each case that is used in the operation of the SMS BusinessLeased Real Property; (viii) all Permits used in the SMS Businessleasehold improvements and all machinery, equipment, vehicles, fixtures, trade fixtures, computers and related software and furniture; (ix) all accounts receivableoffice supplies, notes receivable production supplies and other rights to payment supplies, spare parts, other miscellaneous supplies and other tangible property of the Company or any of its Subsidiaries to the extent related to the SMS Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoingkind; (x) all prepayments, prepaid expenses and cash deposits (other than those related to Excluded Assets or Excluded Liabilities) and employee advances (to the extent made by the Company or its Subsidiaries in connection with the SMS Business, and any claim, remedy or other right related relating to any of the foregoing, in each case to the extent associated with Assumed Contracts or other Purchased Assets, or related to other Assumed LiabilitiesTransferred Employees); (xi) all prepaid assets paid by the Company or its Subsidiaries to the extent claims, causes of action, choses in connection with the SMS Businessaction, rights of recovery and rights of set-off of any claim, remedy or kind (other right than those related to any of the foregoing, in each case to the extent associated with Assumed Contracts Excluded Assets or other Purchased Assets, or related to Assumed Excluded Liabilities); (xii) all causes of action, claims, demands, rights the right to receive and retain mail and other communications (including rights under other than those related to Excluded Assets or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractorsExcluded Liabilities) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to all telephone numbers used by the Asset Closing Date which relate to the SMS Business, Purchased Assets or Assumed LiabilitiesCompany; (xiii) all financial lists, records and other books information pertaining to accounts, Transferred Employees and referral sources; all lists and records pertaining to suppliers and customers; and all other documentsstudies, microfilm plans, books, ledgers, files and business records of every kind (other than Tax Returnsincluding all financial, business and marketing plans and information); in each case whether evidenced in writing, electronic data (including by computer) and correspondenceor otherwise, wherever located, except in all cases those related to the SMS Business, the Purchased Excluded Assets or the Assumed Excluded Liabilities; (xiv) personnel records for each Transferred SMS Employee all advertising, marketing and promotional materials, all archival materials and all other printed or written materials; (subject to the prior consent of such Transferred SMS Employee xv) to the extent transferable, all permits, licenses, certifications, authorizations and approvals from all permitting, licensing, accrediting and certifying agencies, organizations or groups (including all of the foregoing listed or described on the attached License Schedule and the attached Environmental and Safety Matters Schedule), and the rights to all data and records held by such consent is required by applicable Law in connection with the transfer of such personnel records of such Transferred SMS Employeeagencies; (xvi) its legal and business names (and derivations thereof); (xvii) all goodwill as a going concern; and (xvxviii) all other assets of the Company and its Subsidiaries that relate toproperties, or are used in the conduct of, the SMS Business, are not Excluded Assets and are not of a category or type described in the foregoing clauses of this Section 2.1(a). (b) The Seller Parties and the Purchaser Parties expressly understand and agree that the following assets and all of the goodwill associated therewith (in each case after taking into account the effects of, and assuming the completion of, the Restructuring), as the same shall exist on the Asset Closing Date shall be excluded from the Purchased Assets (the “Excluded Assets”): (i) all capital stock or other equity interests in any Person; (ii) all rights arising from Excluded Liabilities; and (iii) the Maintenance Agreements; (iv) all accounts receivable, notes receivable and other rights to payment of the Company or any of its Subsidiaries to the extent related to the Maintenance Business, together with any unpaid interest or fees accrued thereon or other amounts due with respect thereto, and any claim, remedy or other right related to any of the foregoing; (v) all deposits to the extent made owned by the Company as of the Closing Date, or its Subsidiaries to in which the extent Company has an interest, and which are necessary for or related to or used by the Maintenance BusinessCompany, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vi) all prepaid assets paid by the Company or its Subsidiaries to the extent in related to the Maintenance Business, and any claim, remedy or other right related to any of the foregoing, in each case to the extent associated with the Maintenance Business; (vii) all causes of action, claims, demands, rights (including rights under or pursuant to warranties, representations and guarantees made by suppliers, manufacturers or contractors) and privileges against third parties, whether liquidated or unliquidated, fixed or contingent, ▇▇▇▇▇▇ or inchoate that relate to events or breaches occurring on or prior to the Asset Closing Date which relate to the Maintenance Agreements; (viii) all other assets of the Company and its Subsidiaries that relate exclusively to, or are used exclusively in the conduct of, the Maintenance Business; and (ix) any assets that are excluded from the Purchased Assets pursuant to Section 3.1(c)not otherwise Excluded Assets.