Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”): (a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement; (b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”); (c) all Excluded Contracts; (d) all Excluded Tax Assets; (e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise; (f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates; (g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records; (h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records; (i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans; (j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements; (k) the Excluded Prepaid Expenses; (l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property; (m) all Swiss Manufacturing Facilities Tangible Personal Property; (n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m))); (o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m)); (p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing; (q) all Manufacturing Registrations; (r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets); (s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability; (t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and (u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Asset Purchase Agreement (Amgen Inc)
Excluded Assets. Notwithstanding anything No security interest is or will be granted pursuant to the contrary this Agreement or any other Security Document in Section 2.1 any right, title or interest of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toany Granting Party under or in, and there shall be excluded from the sale, transfer, conveyance, assignment “Collateral” and delivery to Purchaser, and the Transferred Assets “Pledged Collateral” shall not include (the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided any interest in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks leased real property (including Fixtures) (and any social media handles owned by Seller there shall be no requirement to deliver landlord lien waivers, estoppels or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementcollateral access letters);
(b) any fee interest in owned real property (iincluding Fixtures) any attorney-client, work product or similar privilege if the fair market value of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)fee interest is less than $2,000,000 individually;
(c) all Excluded any Instruments, Contracts, Chattel Paper, Intangibles, Copyright Licenses, Patent Licenses, Trade-m▇▇▇ Licenses, Industrial Design Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or an Affiliate thereof, (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the PPSA or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements);
(d) all Excluded Tax Assetsany assets over which the granting of such a security interest in such assets by the applicable Granting Party would be prohibited by any applicable law, regulation, permit, order or decree or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), or requires a consent (to the extent that, with respect to any assets that, if they were subject to the U.S. Guarantee and Collateral Agreement and the Base Intercreditor Agreement, would constitute the ABL Priority Collateral (as such term is defined in the Base Intercreditor Agreement), any applicable Granting Party has sought such consent using commercially reasonable efforts) of any Governmental Authority that has not been obtained;
(e) all any assets to the extent that the granting or perfecting of a security depositsinterest in such assets would result in costs or consequences to Holdings or any of its Subsidiaries, including any Grantor hereunder, as reasonably agreed in writing after the date hereof by the Parent Borrower, for and on behalf of the applicable Grantor, and the Canadian Agent and the Co-Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(f) any (i) Equipment and/or Inventory (and/or related rights and/or assets) that would otherwise be included in the Security Collateral (and such Equipment and/or Inventory (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such Equipment and/or Inventory (and/or related rights and/or assets) is subject to a Lien permitted by Section 8.3 of the Credit Agreement and designated by the Parent Borrower to the Canadian Collateral Agent or the Canadian Agent (but only for so long as such Lien remains in place) and (ii) other property that would otherwise be included in the Security Collateral (and such other property shall not be deemed to constitute a part of the Security Collateral) if such other property is subject to a Permitted Lien described in Section 8.3(h) or Section 8.3(w) of the Credit Agreement and designated by the Parent Borrower to the Canadian Collateral Agent or the Canadian Agent (but, in each case, only for so long as such Liens are in place) and, if such Lien is in respect of a Hedging Agreement, such other property consists solely of (x) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (y) any assets relating to such assets, proceeds, dividends or distributions or to obligations under any Hedging Agreement, and/or (z) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Agreements or (2) any other agreements, instruments or documents related to any Hedging Agreement or to any of the assets referred to in any of subclauses (x) through (z) of this clause (ii);
(g) any property (and/or related rights and/or assets) that (A) would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets)) shall not be deemed to constitute a part of the Security Collateral) if such property has been sold or otherwise transferred in connection with (i) a Special Purpose Financing (or constitutes the proceeds or products of any property that has been sold or otherwise transferred in connection with a Special Purpose Financing (except as provided in the proviso to this subsection)) or (ii) a Sale and Leaseback Transaction permitted under Section 8.6 of the Credit Agreement, or (B) is subject to any Permitted Lien and consists of property subject to any such Sale and Leaseback transaction or general intangibles related thereto (but only for so long as such Liens are in place), provided that, notwithstanding the foregoing, a security interest of the Canadian Collateral Agent shall attach to any money, securities or other consideration received by any Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Security Collateral;
(h) Equipment and/or Inventory (and/or related rights and/or assets) subject to any Permitted Lien that secures Indebtedness permitted by the Credit Agreement that is Incurred to finance or refinance such Equipment and/or Inventory and designated by the Parent Borrower to the Canadian Collateral Agent or Canadian Agent (but only for so long as such Permitted Lien is in place);
(i) without duplication, any Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in such definition;
(j) Vehicle Rental Concession Rights;
(k) any assets covered by a certificate of title to the extent such assets do not constitute Eligible Service Vehicles or Eligible Rental Equipment, in each case by operation of clause (f) of the definition of such term in the Credit Agreement;
(l) any aircraft, airframes, aircraft engines or helicopters, or any Equipment or other assets constituting a part of any thereof;
(m) for the avoidance of doubt, any Deposit Account and any Money, cash, cheques, other negotiable instrument, funds and other evidence of payment therein held by any ‘qualified intermediary’ in connection with the HERC LKE Program or Rental Car LKE Program;
(n) any Money, cash, cheques, other negotiable instrument, funds and other evidence of payment held in any Deposit Account of the Parent Borrower or any of its Subsidiaries (i) for the benefit of customers of Hertz Claim Management Corporation or any of its Subsidiaries in the ordinary course of business and (ii) in the nature of a security deposit with respect to obligations for the benefit of the Parent Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to contractual obligations;
(o) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property is subject to other Liens permitted by Section 8.3(t)(i) of the Credit Agreement to the extent that, prior to or simultaneously with such property being excluded from, and/or ceasing to constitute a part of, the Security Collateral, one or more of the U.S. Borrowers shall have repaid amounts outstanding under the Credit Agreement such that (x) the sum of (A) the Aggregate U.S. Facility Lender Exposure plus (B) the amount by which the aggregate unpaid Extensions of Credit made to the Canadian Borrowers exceeds the Canadian Borrowing Base (as set forth in the Borrowing Base Certificate delivered on the date of such prepayment (with appropriate adjustments to the form thereof) calculating the Canadian Borrowing Base after giving effect to the exclusion of such property from the Security Collateral, does not exceed (y) the U.S. Borrowing Base (as set forth in a Borrowing Base Certificate delivered on the date of such prepayment (with appropriate adjustments to the form thereof) calculating the U.S. Borrowing Base after giving effect to the exclusion of such property from the Security Collateral);
(p) any interest of M▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or NSULC in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the ClosingHCE Limited Partnership;
(q) notwithstanding the grant of security interest made by the Grantors in favour of the Canadian Collateral Agent, for the rateable benefit of the Secured Parties, of all Manufacturing Registrationsof its Pledged Stock, any Grantor that controls any interest (for the purposes of this Section 3.3(q) “ULC Interests”) in any unlimited liability company (for the purposes of this Section 3.3(q), a “ULC”) pledged hereunder shall remain registered as the sole registered and beneficial owner of such ULC Interests and will remain as registered and beneficial owner until such time as such ULC Interests are effectively transferred into the name of the Canadian Collateral Agent or any other person on the books and records of such ULC. Nothing in this Agreement is intended to or shall constitute the Canadian Collateral Agent or any person as a shareholder or member of any ULC until such time as notice is given to such ULC and further steps are taken thereunder so as to register the Canadian Collateral Agent or any other person as the holder of the ULC Interests of such ULC. To the extent any provision hereof would have the effect of constituting the Canadian Collateral Agent or any other person as a shareholder or member of a ULC prior to such time, such provision shall be severed therefrom and ineffective with respect to the ULC Interests of such ULC without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Stock which are not ULC Interests. Except upon the exercise of rights to sell or otherwise dispose of ULC Interests following the occurrence and during the continuance of an Event of Default hereunder, no Grantor shall cause or permit, or enable any ULC in which it holds ULC Interests to cause or permit, the Canadian Collateral Agent to: (a) be registered as shareholders or members of such ULC; (b) have any notation entered in its favour in the share register of such ULC; (c) be held out as a shareholder or member of such ULC; (d) receive, directly or indirectly, any dividends, property or other distributions from such ULC by reason of the Canadian Collateral Agent holding a security interest in such ULC; or (e) act as a shareholder or member of such ULC, or exercise any rights of a shareholder or member of such ULC including the right to attend a meeting of, or to vote the shares of, such ULC;
(r) all information technology systemsthe Collateral shall not include the last day of the term of any lease or agreement therefor but upon the enforcement of the security interest granted hereby in the Collateral, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller the Grantors or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets)them shall stand possessed of such last day in trust to assign the same to any person acquiring such term;
(s) all Actions available to or being pursued by Seller or the term “Goods” when used in this Agreement shall not include “consumer goods” of any of its Affiliates (including any Asset Selling Entity) to Grantor as that term is defined in the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded LiabilityPPSA;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Canadian Guarantee and Collateral Agreement (Hertz Global Holdings Inc)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closingnothing in this Agreement shall constitute or be construed as requiring Seller to sell, Seller and its Affiliates shall retain all of their respective rightsassign, titles and interests in and toconvey, transfer or deliver, and there Buyer shall not be entitled to purchase or acquire, any right, title or interest in, to or under any properties, assets, business, operation or division of Seller, or any Affiliate thereof, not expressly set forth in Section 2.1, including the following assets and properties which are hereby specifically excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred definition of Purchased Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”"):
(a) other than the Transferred IP The right, title and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property interest of Seller and its Affiliatessuccessors, including assigns and Representatives in, to and under all Intellectual Property, Seller Marks electrical transmission or other intellectual property set forth on Schedule 2.2(adistribution facilities (as opposed to generation facilities) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege information technology and telecommunications assets of Seller or any of its Affiliates located at or otherwise forming a part of either of the Wholly Owned Stations (whether or not regarded as a "transmission" or "generation" asset for regulatory or accounting purposes), including all switchyard facilities, substation facilities and support equipment, as well as all permits, contracts and warranties, to the extent they relate to such transmission and distribution assets or information technology and telecommunications assets (other than the electrical transmission facilities and information technology and telecommunications assets identified on Schedule 2.1(d), all of which are included as Purchased Assets) (collectively, the "Transmission Assets");
(b) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under certain switches and meters, gas facilities, revenue meters and remote testing units, drainage pipes and systems, pumping equipment and associated piping, in each case, located at or forming a part of the Wholly Owned Stations, as identified in the Access Agreement;
(c) All certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests in joint ventures, partnerships, limited liability companies and other entities;
(d) All cash, cash equivalents, bank deposits, accounts and notes receivable (trade or otherwise), prepaid expenses relating to or arising out the operation of the Program Business Purchased Assets and any income, sales, payroll or other Tax receivables (in each case, whether held by Seller or any third party);
(e) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all intellectual property, including the names "Atlantic City Electric Company", "ACE" or any derivation thereof, as well as any related or similar name, or any other trade names, trademarks, service marks, corporate names and logos, or any part, derivation, colorable imitation or combination thereof;
(f) All tariffs, agreements and arrangements to which Seller or its Representatives is a result party for the purchase or sale of legal counsel representing electric capacity or energy, or for the purchase of transmission, distribution or ancillary services;
(g) Subject to Section 6.16, the rights of Seller and its successors, assigns and Representatives in, to and under all causes of action against third parties relating to any Excluded Assets or Excluded Liabilities, if any, whether accruing prior to, on or after the Closing Date, including all claims for refunds, prepayments, offsets, recoupment, insurance proceeds, insurance distributions, dividends or other proceeds, condemnation awards, judgments and the like, whether received as payment or credit against future Liabilities, in each case, relating to any period prior to the Closing Date;
(h) All Tax refunds or credits (including refunds or credits of real property Taxes paid or due with respect to the Wholly Owned Stations, ▇▇▇▇▇▇▇ Creek or any related Real Property), which refunds or credits are with respect to periods prior to the Closing Date, whether directly or indirectly, regardless of when actually paid;
(i) All employment agreements and personnel records of Seller and their respective successors, assigns and Representatives, other than, to the extent permitted by applicable Law, Transferred Employee Records;
(j) The minute books, stock transfer books, corporate seal and other corporate records of Seller and its successors, assigns and Representatives;
(k) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all contracts, agreements, arrangements, licenses and leases of any nature, other than the Seller's Agreements;
(l) Except as set forth in Section 6.8(f), all assets and properties owned or held by any of its Affiliates Benefit Plan;
(m) All insurance policies relating to the ownership, lease, maintenance or the Program Business in connection with the transactions contemplated by this Agreement, any operation of the Ancillary Agreements Purchased Assets;
(n) All other assets and properties owned or any Action described leased by Section 2.2(s)Seller or its successors, assigns and Representatives which are not used in the operation of the Wholly Owned Stations;
(iio) The right, title and interest of Seller and its successors, assigns and Representatives under this Agreement and the portions Additional Agreements; and
(p) The right, title and interest of any documents Seller and its successors, assigns and Representatives in, to and under all Emission Allowances of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing FacilitiesEmission Allowances identified on Schedule 2.1(g) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(mExcess Emission Allowances identified on Schedule 2.1(h)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Atlantic City Electric Co)
Excluded Assets. Notwithstanding anything to Buyer expressly understands and agrees that the contrary assets, rights and properties of Seller not included in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):) shall be retained by Seller and its Affiliates and such Excluded Assets shall not be transferred to, or acquired by, Buyer hereunder. Without limiting the generality of the foregoing, subject to Section 2.01(a), the following shall be included among the Excluded Assets:
(ai) all cash and cash equivalents of Seller or its Affiliates on hand or held by any bank or other than third Person;
(ii) any and all rights to the Transferred IP Seller Name and Seller Marks, together with any Contracts, agreements or understandings granting rights to use the rights provided in this Agreement and the Ancillary Agreements, any same (including Business Intellectual Property, to the extent incorporating the Seller Marks Name and Seller Marks);
(iii) subject to and without limiting Buyer’s rights expressly set forth in the Sublease, all of Seller’s and its Affiliates’ right, title and interest in owned and leased real property and other interests in real property including all such right, title and interest under each real property lease pursuant to which any social media handles owned of them leases, subleases (as sub-tenant) or otherwise occupies any such leased real property, including all improvements, fixtures and appurtenances thereto and rights in respect thereof;
(iv) all loans or advances: (A) by the Business to Seller or its Affiliates; and (B) by Seller or its Affiliates that consist to the Business;
(v) all Tax Returns and related work papers (other than any Tax Returns expressly included in the Transferred Assets) of Seller Marksand its Affiliates;
(vi) and other intellectual property all Tax assets of Seller and its Affiliates, including all Intellectual Propertysuch Tax assets relating to, but not limited to, all refunds or credits for any Taxes or customs fees or customs duties, in each case, with respect to the Transferred Assets or the Business for any Pre-Closing Tax Period;
(vii) the Parent Plans and other employee benefit plans, programs, arrangements and agreements sponsored or maintained by Seller Marks or its Affiliates, and all trusts and other intellectual property set forth on Schedule 2.2(aassets or rights related thereto, except as expressly provided in the Employee Matters Addendum;
(viii) all assets and rights expressly excluded pursuant to this the Employee Matters Addendum;
(ix) all assets and rights expressly excluded pursuant to, or used by Seller or its Affiliates in connection with its obligations under, the Employee Matters Addendum, the Transition Services Agreement, the Cross License, the Sublease, the Engineering Services Agreement, the Preferred Provider Agreement, the DMLM Product Support Agreement and the Mutual Termination Agreement;
(bx) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out personnel and employment records for employees and former employees of the Program Business who are not Continuing Employees (as a result of legal counsel representing Seller, any of its Affiliates or the Program Business defined in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”Exhibit K);
(cxi) subject to and without limiting Buyer’s rights expressly provided under Section 7.03, all Excluded ContractsInsurance Policies and all rights of any nature with respect to any Insurance Policy, including any recoveries thereunder and any rights to assert claims seeking any such recoveries;
(dxii) all Excluded Tax Assetsany assets, rights or properties Related to the Business owned on the Agreement Date or after the Agreement Date and sold or otherwise disposed of prior to the Closing in the Ordinary Course of Business as, in the case of assets or properties, scrap, obsolete, or otherwise unusable in the Business;
(exiii) all security depositscauses of action (including counterclaims) and defenses (A) against third parties relating to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that may be asserted against the Seller or its Affiliates or for which indemnification may be sought by the Buyer Indemnified Parties pursuant to Article X;
(xiv) any interest of Seller under the Transaction Agreements;
(xv) intercompany accounts receivable (including trade accounts receivable), which intercompany accounts receivable shall be extinguished at Closing;
(xvi) (A) any books and records relating to the Excluded Assets or Excluded Liabilities or (B) any books, records or other materials that Seller (I) is required by Law to retain (copies of which, to the extent permitted by Law, will be made available to Buyer, at Buyer’s cost, upon Buyer’s reasonable request), (II) reasonably believes are necessary to enable Seller to prepare and/or file Tax Returns (copies of which will be made available to Buyer, at Buyer’s cost, upon ▇▇▇▇▇▇▇ deposits’s reasonable request) or (III) is prohibited by Law from delivering to Buyer;
(xvii) all expenses Related to the Business that have been prepaid by Seller, bidincluding ad valorem Taxes and lease and rental payments, leaseattributable to any period beginning prior to and ending on or before the Closing Date; and
(xviii) all Permits that are Related to the Business; and
(xix) the assets, utility rights and properties listed in Schedule 2.01(b)(xix). Notwithstanding anything to the contrary contained in this Agreement or any of the other depositsTransaction Agreements, Buyer acknowledges and agrees that all of the following shall remain the property of Seller or its applicable Affiliate, and neither Buyer nor any of its Affiliates shall have any interest therein: (A) all other forms of deposit placed records and reports prepared or received by Seller or any of its Affiliates for in connection with the performance sale of a Transferred Contract the Business and the Transactions, including all analyses relating to the Business or otherwise;
Buyer so prepared or received; (fB) all cash, cash equivalents, credit cards and bank accounts confidentiality agreements with prospective purchasers of Seller the Business or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship ofportion thereof, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
bids and expressions of interest received from third parties with respect thereto; and (jC) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rightsprivileged materials, title documents and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, records that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior Related to the Burgundy Closing shall constitute Excluded Assets)Business.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this AgreementClause 2.1, from and after the Closing, Seller and its Affiliates Novartis shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the salenot sell, transfer, conveyance, assignment and delivery or convey to Purchaser, and the Transferred Assets Purchaser shall not include purchase and acquire the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and Licensed IP, subject to the license rights provided granted to the Purchaser in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementClause 3.1;
(b) (i) any attorney-clientthe name “Novartis”, work product “Ciba‑Geigy” or similar privilege of Seller “Sandoz”, or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Sellertrademark, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreementservice ▇▇▇▇, any of the Ancillary Agreements or any Action described by Section 2.2(s)trade dress, and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documentslogo, trade name, the “Privileged Seller Documents”)semi-figurative Novartis house ▇▇▇▇ or corporate name confusingly similar or related thereto;
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security depositsthe accounts receivable and the accounts payable, ▇▇▇▇▇▇▇ depositsincluding accruals, bid, lease, utility prepaid expenses and other deposits, and all other forms any cash or cash equivalents of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller Novartis or any of its Affiliates relating to employees the Business, the Product or the Transferred Commercial Property for the period prior to the Closing Date;
(d) any real property or leaseholds (together with all fixtures and fittings related to any property), physical plant, machinery, equipment, motor vehicles or office equipment;
(e) any rights or assets belonging to the generic business of Seller Sandoz (which is the generic division of Novartis), or any of its Affiliates or successors, containing the Transferred EmployeesDrug Substance, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (includingbut, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to rights or assets do not include the extent provided assets or rights set forth in Section 2.1(m)))Clause 2.1;
(of) all insurance proceeds any rights or assets belonging to the business of Alcon (which Seller is a division of Novartis), or any of its Affiliates has a right to receive as of successors, containing the Closing that relate to any eventsDrug Substance, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreedbut, for the avoidance of doubt, such rights or assets do not include the assets or rights set forth in Clause 2.1;
(g) any rights under Novartis’ insurance policies or self‑insurance which are related to the Business;
(h) originals of books and records that Novartis and/or its Affiliates are required to retain pursuant to any rightLaw, titleprovided however, that (i) Novartis and its Affiliates, as applicable, shall provide copies (redacted to the extent necessary to remove any confidential information not related to the Drug Substance or interest Product in the Territory) of Burgundy such books and records upon the Purchaser’s reasonable request and (ii) Novartis and its Affiliates, as applicable, may destroy such books and records in accordance with their prevailing records retention procedures to the extent such books and records are no longer required to be retained by Law so long as Novartis and its Affiliates have previously provided copies of such books and records pursuant to clause (i) of this Clause 2.2(h) after giving Purchaser reasonable opportunity to take possession thereof as provided in Clause 17.3; and [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions
(i) any rights or assets, other than the Transferred Assets. Notwithstanding the foregoing, Novartis acknowledges that Purchaser may use the Transferred Assets and the Licensed IP to develop products other than the Product containing the Drug Substance as an active pharmaceutical ingredient in the Territory and Purchaser acknowledges that such activities shall be carried out at the sole risk of the Purchaser and Novartis shall have no responsibility or any of its Affiliates liability in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)this regard.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the The following assets, properties and rights of Sellers (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):) are not included in the Acquired Assets and shall be retained by Sellers and shall not be acquired by Purchaser pursuant to this Agreement:
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary AgreementsExcept for any Assigned Deposits, any Intellectual Property, Seller Marks (and any social media handles owned by Seller cash on hand or its Affiliates that consist on deposit in accounts of Seller Marks) and Sellers at banks or other intellectual property of Seller and its Affiliatesfinancial institutions, including all Intellectual Propertybut not limited to any amount due to Sellers pursuant to that certain Escrow Agreement made and entered into as of January 31, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement2008 by and among CCB Acquisition, LLC, a Delaware limited liability company, Parent, and SunTrust Bank, a Georgia banking corporation;
(b) the Excluded Facilities;
(ic) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, Facilities Leases for any of the Ancillary Agreements Excluded Facilities, any contract or any Action agreement not described by Section 2.2(son Schedule 2.1(f) or Schedule 2.1(h), and any contract or lease or with respect to which Purchaser does not assume all Liabilities that arise on or after the Closing Date in accordance with the Sale Order (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the an “Privileged Seller DocumentsExcluded Contract”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assetsany assets of any of Sellers’ Benefit Plans, and any rights under any of the Sellers’ Benefits Plans or any contract, agreement or arrangement between any employee or consultant and Sellers;
(e) except for any Assigned Claims, all security depositsClaims of Sellers as of the Closing Date, ▇▇▇▇▇▇▇ depositsincluding but not limited to (i) any such Claims arising under this Agreement, bid(ii) any such Claims against any Governmental Authority for refund or credit of any type with respect to the Sellers’ Taxes for the Pre-Closing Tax Period or Income Taxes of the Sellers for any period, lease(ii) any such Claims against any Person related exclusively to any Excluded Liabilities or Excluded Assets, utility and including any insurance Claims, (iii) any Avoidance Actions (other depositsthan Customer Avoidance Actions, which for avoidance of doubt, shall be included among the Assigned Claims), (iv) any commercial tort Claims, and all other forms (v) any Claims against the directors or officers of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;Sellers; and
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real asset, property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubtright, any proceeds received with respect to any such policies (other than to the extent provided contract or Claim not described in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)2.1.
Appears in 1 contract
Sources: Asset Purchase Agreement (Proxymed Inc /Ft Lauderdale/)
Excluded Assets. Notwithstanding anything herein to the contrary in Section 2.1 of this Agreement, from and after the Closingcontrary, Seller and or its Affiliates Affiliates, as applicable, shall retain all of their respective rightsits right, titles title and interests interest in and to, and there shall be excluded from the sale, transferassignment or transfer to Buyer hereunder, conveyanceall assets of Seller not included in the Purchased Assets, assignment and delivery to Purchaserwhich include, and the Transferred Assets shall not include without limitation, the following assets, properties and rights (tangible or intangible and wherever located) assets (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementExcluded Products;
(b) assets not primarily related to or used in the operation of the Business or for the Purchased Assets, including all rights of Seller and Seller’s Affiliates thereunder with respect to any rights, causes of action, choses in action, rights of recovery or indemnification, insurance benefits, rights of set-off of any kind, lawsuits, claims, bankruptcy claims or proofs of claims and demands of any nature that are not Assumed Liabilities, except as expressly scheduled as a Purchased Asset pursuant to any subsection of Section 2.1 of the Disclosure Schedule and qualifying as a Purchased Asset pursuant to the definition thereof;
(c) all (i) bank accounts of Seller and (ii) cash and cash equivalents of Seller on hand at the Effective Time, including bank balances and cash and cash equivalents in bank accounts, monies in the possession of any banks, savings and loans or trust companies and similar cash items on hand at the Effective Time, other than (A) escrow monies and funds held in trust on behalf of Seller or any of its Affiliates solely for the benefit of the Businesses, or (B) security deposits in the possession of landlords, utility companies or other third Persons (including Governmental Authorities) and held on behalf of Seller or any of its Affiliates solely for the benefit of the Businesses;
(d) (i) any attorney-client, work client privilege and attorney work-product or similar privilege protection of Seller or any of its Affiliates or otherwise relating to or arising out of associated with the Program Business as a result of legal counsel representing Seller, any of its Affiliates Seller or the Program Business Business, including in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and ; (ii) the portions all documents maintained by legal counsel as a result of any documents representation of Seller or any of its Affiliates the Business; (but not any underlying Transferred Books and Records or Transferred Business Employee Recordsiii) all document subject to any such the attorney-client privilege and work-product protection described in clause subsection (i) ); and (such documents, the “Privileged Seller Documents”);
(civ) all Excluded Contracts;
(d) all Excluded Tax Assetsdocuments maintained by Seller in connection with the transactions contemplated by this Agreement;
(e) all security depositsContracts that are not Assigned Contracts, ▇▇▇▇▇▇▇ depositsincluding any Contracts with U.R. Holding S.P.A. and its Affiliates, bidContracts for software, leasehuman resources, utility benefits and other depositsrelated Seller business uses, and all other forms of deposit placed by Seller any restrictive covenant, confidentiality, non-disclosure or any of its Affiliates for the performance of a Transferred invention assignment Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has is a right to receive as party, and all rights of Seller and Seller’s Affiliates thereunder;
(f) all Seller Employee Plans and trusts or other assets attributable thereto;
(g) any Permits that do not constitute Purchased Assets;
(h) the Closing that relate to equity securities in any events, circumstances direct or occurrences prior to the Closing indirect subsidiary of Seller (other than to the extent provided Acquired Subsidiaries as further set forth in Section 2.1(m2.9 below), and the corporate books and records of Seller and its direct and indirect subsidiaries (other than the Acquired Subsidiaries as further set forth in Section 2.9 below);
(pi) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of insurance policies owned or maintained by Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the ClosingAffiliates;
(qj) all Manufacturing Registrationsany real property leased or owned by Seller;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(tk) all assets, properties and rights described on Schedule 2.2(t) including any Contracts, used by Seller or its Affiliates in connection with the services to this be provided to Buyer pursuant to the Transition Services Agreement; and
(ul) for assets or rights listed in Section 2.2(n) of the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Disclosure Schedule.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained herein, including in Section 2.1 of this Agreementabove, from and after the Closing, Seller and its Affiliates Sellers shall retain all of their respective rightsright, titles title and interests interest in and to, and there shall be excluded from not Transfer to the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP all cash, cash equivalents and the rights provided in this Agreement and the Ancillary Agreementsmarketable securities, including, but not limited to, any Intellectual Propertyand all cash, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliatescheck, including all Intellectual Propertymoney order, Seller Marks wire transfer or other intellectual property set forth on Schedule 2.2(a) deposits of the Sellers received prior to this Agreementthe Effective Time and deposited into the bank or other deposit accounts of the Sellers prior to the Effective Time, whether or not such deposits have cleared;
(b) any tangible or intangible assets of RoweCom, Inc., a Delaware corporation (i“RoweCom”) any attorneyand divine/▇▇▇▇▇▇▇▇-client▇▇▇▇, work product Inc., an Illinois corporation (“d/W-H”) and their respective direct or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)indirect subsidiaries;
(c) all Excluded Contracts that are not Assigned Contracts;
(d) all Excluded Tax prepaid expenses, security deposits and other credits owed to the Sellers from third parties, to the extent not primarily related to the Transferred Assets;
(e) all security depositsintercompany rights or obligations between any Sellers;
(f) all rights and incidents under policies, contracts or arrangements other than as set forth in Section 2.1(k) above;
(g) all rights, demands, Claims, and Actions of Sellers (except to the extent related to a Transferred Asset or an Assumed Liability);
(h) all defenses, Claims, counter-Claims, rights or offset and other Actions against any Person asserting or seeking to enforce any Liability against the Sellers, to the extent such Liability is not assumed by the Purchaser pursuant to this Agreement;
(i) any intracompany or Affiliate receivables, advances or indebtedness of any Seller;
(j) any rights of any Seller under this Agreement;
(k) subject to Section 6.5 hereof, any avoidance or similar Actions, including but not limited to Actions under sections 544, 545, 547, 548, 550 and 553 of the Bankruptcy Code;
(l) any income tax refunds or credits arising out of the operation of the Business prior to the Closing Date;
(m) any bids received from any other Person in connection with the proposed sale of the Business or the Transferred Assets and any analyses prepared by or on behalf of Sellers of any bids for the Business or any materials relating to the negotiations with any potential bidder;
(n) any Books and Records related to the Sellers’ employees the Transfer of which would conflict with any confidentiality or privacy obligation of the Sellers under applicable Law;
(o) any assets of any employee benefit plan of any Seller and any rights under any such plan or any contract, agreement or arrangement between any employee or consultant and Sellers;
(p) all rights of the Sellers under the agreements set forth on Schedule 2.2(p) under which the counterparty or counterparties agree not to compete with the Business or agree to keep confidential information regarding the Business, but only to the extent such agreements are not assignable to the Purchaser as a matter of law under the Bankruptcy Code;
(q) except as set forth in Section 2.7 below, the capital stock of any subsidiary of any Seller;
(r) assets primarily relating to the Net Unlimited business of the Sellers;
(s) any professional retainer fees previously paid by the Sellers;
(t) the assets listed on Schedule 2.2(t) which includes (A) certain computers and related information technology necessary to wind-up the Bankruptcy Case and (B) certain non-core assets of the Sellers;
(u) all employment agreements to which any Seller is a party; provided that to the extent any benefit of a nature described in Section 2.1(l) arising under any such employment agreement is transferable to the Purchaser without the consent of the employee (notwithstanding the fact that such employment agreements will not be assumed by or assigned to the Purchaser, and are intended to be rejected by the Sellers in the Bankruptcy Case), then such benefit shall be included in the Transferred Assets;
(v) any monies escrowed by customers of RoweCom;
(w) all bank and other deposit accounts of the Sellers;
(x) all furniture, fixtures and equipment currently at or removed by the Sellers on or prior to the date hereof from the ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwisefacility;
(fy) the following servers: • EAGLE (Dell PowerEdge 4300/Dual PIII 500, 1 gig RAM, 112 gig HD); • HAWK (Dell PowerEdge 4300/Dual PIII 500, 1 gig RAM, 112 HD); • IS3 (HP LPR/Dual PIII 700, 1 gig RAM, 18 gig); • FALCON (HP LPR/Dual PIII 700, 1 gig RAM, 18 gig); • LILMIDEV01 (Dell PowerEdge 4300/Dual PIII 500, 1 gig RAM, 80 gig); • PENGUIN (IBM Netfinity 3500 Single 500 Mhz PIII processor, 384 MB RAM, 2 SCSI 10 GB); • CHMOCHDOEXCH01 (Compaq 1600/Dual PIII 500, 1 gig RAM, 9 gig).
(z) all cash, cash equivalents, credit cards and bank accounts assets of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), the Sellers other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts those primarily related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this AgreementBusiness; and
(uaa) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)trade name “divine”.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained herein, nothing in Section 2.1 of this AgreementAgreement will constitute or be construed as conferring on Buyer, from and after Buyer is not acquiring, any right, title or interest in or to the Closingfollowing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be the following being specifically excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) sale of assets contemplated by this Agreement (collectively, the “"Excluded Assets”):
"): (a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks assets (and any social media handles owned by Seller including contracts) listed or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth described on Schedule 2.2(a) to this Agreement;
); (b) the Marks, the Licensed Patents, the SAP Software and any other Software used at the Transferred Real Property not relating primarily to the Business (except for transition rights as provided in the Sellers Transition Services Agreement); (c) except as provided in Section 8.3, the assets of the Pension Plans and Welfare Plans maintained by the Asset Sellers; (d) any properties, assets, business, operation, subsidiary or division of Sellers or any Affiliate of Sellers, whether tangible or intangible, real, personal or mixed, which is not related primarily to the Business; (e) any cash, cash equivalents, bank deposits and marketable securities of Sellers and all accounting or general ledger records of Sellers; (f) any communications between Sellers and their counsel, including attorney-client privileged or work product material, to the extent relating to Excluded Liabilities; (g) any abatement or refund of any Tax for which Sellers are liable pursuant to Section 8.2; (h) any rights, claims or causes of action against any third parties relating to the Excluded Assets or the Excluded Liabilities; (i) all contracts of insurance and all rights thereunder; (j) all corporate records of Asset Sellers, including corporate minute books and stock transfer books and corporate seals; (k) without limiting the generality of clause (h), any attorney-clientrights the Sellers may have, work product or similar privilege of Seller or any of its Affiliates or otherwise amounts the Sellers may be entitled to, against the ANC Defendants relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and Licensed Patents; (iil) the portions of Chicago Personal Property; (m) any documents of Seller or intercompany receivables and any of its Affiliates other rights under any intercompany agreements between Sellers and their Affiliates; (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(cn) all Excluded Contracts;
accounts receivable generated by the Business prior to the Closing Date; (do) all Excluded Tax Assets;
any Trade Secrets or Patent Rights relating to shirring and any equipment used in shirring; (ep) all security depositsthe parcel of real property located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ deposits▇, bid▇▇▇▇▇▇▇, lease▇▇▇▇▇▇, utility together with the improvements, buildings, structures and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies fixtures (other than to fixtures included in the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (iiCanadian Equipment) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
located thereon; and (q) all Manufacturing Registrations;
the capital stock of Viskase (rUK) all information technology systemsLimited, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to a company organized under the extent relating to or arising out of (i) any laws of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)United Kingdom.
Appears in 1 contract
Sources: Purchase Agreement (Bemis Co Inc)
Excluded Assets. Notwithstanding anything to the contrary contained in this Section 2.1, the Parties to this Agreement expressly understand and agree that the Seller is not agreeing hereunder to sell, assign, transfer or convey to the Buyer any of the Excluded Assets. The Excluded Assets shall consist of the following property, rights and interests:
(i) any amounts payable to Seller under the Assigned Contracts listed on Schedule 3.11 based upon or attributable to performance under such Assigned Contracts provided by the Seller or the operation of the Acquired Assets by the Seller prior to the Closing Date;
(ii) any refunds with respect to Taxes relating to any Pre-Closing Period;
(iii) any Contract to the extent that such Contract will not be assigned under Section 5.10 or becomes an Excluded Contract under Paragraph 2.1 (a)(vii); provided however, that the Contracts referred to in Section 2.1 5.10 and in this Paragraph 2.1(b)(iii) shall constitute Assigned Contracts for purposes of the representations and warranties and covenants under this Agreement, from and provided further that if after Closing the Parties obtain the Consent to assignment of any Assigned Contract that is not assigned at Closing pursuant to Section 5.10, the Assigned Contract so affected shall then be assigned to Buyer and shall become an Acquired Asset rather than an Excluded Asset;
(iv) any Acquired Asset which becomes the subject of a Total Loss prior to Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests as provided in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):Section 2.5(c)(i);
(av) other than any rights to contribution, indemnity and/or defense related to the Transferred IP and ownership of the Acquired Assets or the Business prior to Closing but only to the extent such rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned relate to Retained Obligations or to remediation or repairs effected by Seller or its Affiliates that consist of Seller Marksprior to Closing;
(vi) all defenses related to liabilities and other intellectual property obligations retained by Seller;
(vii) trademarks and trade-names of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (iiviii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books minute book, stock transfer records and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility similar corporate and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel limited liability company records of Seller or any of and its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreementpredecessors; and
(uix) for the avoidance of doubt, all any other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are assets not specifically addressed by described in Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Asset Purchase Agreement (Martin Midstream Partners Lp)
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of this Agreement2.1(a), from Purchaser will not purchase, assume or otherwise acquire, and after the Closing, Seller and its Affiliates shall will retain all of their respective the rights, titles title and interests interest in and to, any and there shall be excluded from all assets of Seller and its Affiliates that are not included in the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):), including, by way of example only, the following assets, properties, rights, Contracts and claims, wherever located, whether tangible or intangible, real, personal or mixed:
(a1) all assets, properties, rights, Contracts and claims, including Loans and extensions of credit in process, wherever located, whether tangible or intangible, real, personal or mixed, primarily related to the Banking Centers;
(2) other than the Transferred IP Real Property Leases and the rights provided in this Agreement and the Ancillary AgreementsATM Real Property Leases, any Intellectual Propertyall leases, Seller Marks (and any social media handles owned by subleases, licenses or other Contracts pursuant to which Seller or any of its Affiliates that consist leases, subleases or licenses real property;
(3) all Nonperforming Loans and Loans to Retained Employees;
(4) the Excluded Contracts;
(5) all assets related to employee benefit arrangements of Seller Marksor any of its Affiliates, including the Employee Plans;
(6) and other intellectual property all Intellectual Property of Seller and its Affiliates, including all Intellectual Propertyright, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of Seller Marks and its Affiliates, including any rights (ownership, licensed or otherwise) to any of the Seller Names and any other intellectual property set forth Trademarks or logos of Seller or its Affiliates, including those identified on Schedule 2.2(a) to this Agreement2.1(b)(6);
(b7) (i) any attorney-clientall books, work product records and other data that cannot, without unreasonable effort or similar privilege of expense, be separated from books and records maintained by Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements retained businesses or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are such books, records and other data relate to Excluded Assets, Excluded Liabilities or Banking Center Employees who do not related to the Program Business or (ii) that are related to the Business become Transferred Banking Center Employees, and all personnel files and records; provided that, to the extent relating permitted under, and in accordance with, Section 7.1(b), Seller shall provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause Seller to incur unreasonable effort or arising out of the operation of the Program Business prior to the Closingexpense;
(q) 8) all Manufacturing Registrations;
(r) all information technology systemslicenses, hardware (including all desktopscharters, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) legal entities of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this AgreementAffiliates; and
(u9) for the avoidance of doubt, all other assets, properties assets listed on and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (ooperations described on Schedule 2.1(b)(9) (it being further understood and agreedcollectively, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute “Additional Excluded Assets”); and
(10) the Credit Card Accounts and Receivables.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Financial Institutions Inc)
Excluded Assets. Notwithstanding anything No security interest is or will be granted pursuant to the contrary this Agreement or any other Security Document in Section 2.1 any right, title or interest of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toany Grantor under or in, and there shall be excluded from the sale, transfer, conveyance, assignment “Collateral” and delivery to Purchaser, and the Transferred Assets “Pledged Collateral” shall not include (the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided any interest in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks leased real property (including fixtures) (and any social media handles owned by Seller there shall be no requirement to deliver landlord lien waivers, estoppels or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementcollateral access letters);
(b) any fee interest in owned real property (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”including fixtures);
(c) all Excluded any Instruments, Contracts, Chattel Paper, Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Industrial Design Licenses, Trade Secret Licenses or other contracts or agreements with, or issued by, Persons other than the Borrower, a Subsidiary of the Borrower or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreement (in each case, except to the extent that, pursuant to the PPSA or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreement);
(d) all Excluded Tax Assetsany assets over which the granting of such a security interest in such assets by the applicable Grantor would be prohibited by any contract permitted under the Credit Agreement (provided such contract was not entered into in contemplation thereof), applicable law, regulation, permit, order or decree or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), or requires a consent (to the extent that, with respect to any assets that would otherwise constitute Collateral, any applicable Grantor has sought such consent using commercially reasonable efforts) of any Governmental Authority that has not been obtained (in each case after giving effect to the applicable anti-assignment provisions of the PPSA to the extent that the assignment of which is expressly deemed effective under the PPSA notwithstanding such prohibition);
(e) all any assets to the extent that such security depositsinterests would result in material adverse tax consequences to the Borrower and its Subsidiaries, ▇▇▇▇▇▇▇ depositsincluding any Grantor hereunder, bid, lease, utility and other deposits, and all other forms of deposit placed as reasonably determined by Seller the Borrower (it being understood that the Lenders shall not require the Borrower or any of its Affiliates for Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law, except as required under the performance of a Transferred Contract or otherwiseLoan Documents);
(f) all cash, cash equivalents, credit cards and bank accounts any assets to the extent that the granting or perfecting of Seller a security interest in such assets would result in costs or consequences to the Borrower or any of its AffiliatesSubsidiaries, including any Grantor hereunder, as reasonably agreed in writing after the date hereof by the Borrower and the Agent that are excessive in view of the benefits that would be obtained by the Secured Parties;
(g) all Books any (i) Equipment and/or Inventory (and/or related rights and/or assets) that would otherwise be included in the Security Collateral (and Records such Equipment and/or Inventory (including and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such Equipment and/or Inventory (and/or related rights and/or assets) is subject to a Lien permitted by Section 9.3 of the Credit Agreement and (ii) other property that would otherwise be included in the Security Collateral (and such other property shall not be deemed to constitute a part of the Security Collateral) if such other property is subject to a Permitted Lien described in clauses (m) and (s) of the definition of “Permitted Liens” in the Credit Agreement (but, in each case, only for so long as such Liens are in place) and, if such Lien is in respect of a Hedge Agreement, such other property consists solely of (x) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (y) any Tax Return of Seller assets relating to such assets, proceeds, dividends or distributions or to obligations under any Hedge Agreement, and/or (z) any other assets consisting of, relating to or arising under or in connection with (1) any Hedge Agreements or (2) any other agreements, instruments or documents related to any Hedge Agreement or to any of its Affiliatesthe assets referred to in any of subclauses (x) through (z) of this clause (ii), other than the Transferred Books and Records;
(h) all employee any personal property (and/or related rights and/or assets) that (A) would otherwise be included in the Security Collateral (and personnel records such property (and/or related rights and/or assets) shall not be deemed to constitute a part of Seller the Security Collateral) if such property has been sold or otherwise transferred in connection with (i) a Franchise Financing Disposition or Securitization Transaction (or constitutes the proceeds or products of any property that has been sold or otherwise transferred in connection with a Franchise Financing Disposition or Securitization Transaction (except as provided in the proviso to this subsection)) or (ii) a Sale and Leaseback Transaction permitted under the Credit Agreement, or (B) is subject to any Permitted Lien and consists of its Affiliates relating property subject to employees any such Sale and Leaseback Transaction or intangibles related thereto (but only for so long as such Liens are in place), provided that, notwithstanding the foregoing, a security interest of Seller the Agent shall attach to any money, securities or other consideration received by any Grantor as consideration for the sale or other disposition of its Affiliates or such property as and to the Transferred Employees, other than the Transferred Business Employee Recordsextent such consideration would otherwise constitute Security Collateral;
(i) Equipment and/or Inventory (and/or related rights and/or assets) subject to any Permitted Lien that secures Indebtedness permitted by the sponsorship of, and all assets Credit Agreement that is incurred to finance or contracts maintained pursuant to or refinance such Equipment and/or Inventory (but only for so long as such Permitted Lien is in connection with, all Seller Benefit Plansplace);
(j) all rights or claims without duplication, any Capital Stock which accrue or will accrue to Seller or any is specifically excluded from the definition of its Affiliates under this Agreement or any Pledged Stock by virtue of the Ancillary Agreementsproviso contained in such definition;
(k) any Capital Stock and other securities of a Restricted Subsidiary of the Excluded Prepaid ExpensesBorrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for such Restricted Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to such requirement;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property[reserved];
(m) all Swiss Manufacturing Facilities Tangible Personal Propertyany aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part of any of the foregoing;
(n) all insurance policies and rights thereunder letters of credit individually with a value of less than $10,000,000;
(including, o) for the avoidance of doubt, any proceeds received Deposit Account and any Money, cash, cheques, other negotiable instrument, funds and other evidence of payment therein held by any “qualified intermediary” in connection with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m))“Like-Kind Exchange”;
(p) all accounts receivableany Money, notes receivablecash, rebates receivable cheques, other negotiable instrument, funds and other miscellaneous receivables evidence of Seller payment held in any Deposit Account of the Borrower or any of its Affiliates Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Borrower or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to contractual obligations;
(iq) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) to the extent that they such assets are not related required to constitute “Collateral” under the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing RegistrationsABL Agreement;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets)Foreign Intellectual Property;
(s) all Actions available to or being pursued any Goods in which a security interest is not perfected by Seller or any of its Affiliates (including any Asset Selling Entity) filing a financing statement under the PPSA, except to the extent relating to such Goods constitute Eligible Service Vehicles (as defined in the ABL Agreement) or arising out Eligible Rental Equipment (as defined in the ABL Agreement), in each case by operation of clause (if) any of the other assetsdefinition of such term in the ABL Agreement, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or and are included in the Canadian Borrowing Base (ii) any Excluded Liabilityas defined in the ABL Agreement);
(t) all assetsthe last day of the term of any lease or agreement therefor but upon the enforcement of the security interest granted hereby in the Collateral, properties and rights described on Schedule 2.2(t) the Grantors or any of them shall stand possessed of such last day in trust to this Agreementassign the same to any person acquiring such term; and
(u) for “consumer goods” of any Grantor as that term is defined in the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)PPSA.
Appears in 1 contract
Sources: Canadian Guarantee and Collateral Agreement (Herc Holdings Inc)
Excluded Assets. Notwithstanding anything to the contrary in provisions of Section 2.1 of this Agreement2.1, from it is hereby expressly acknowledged and after agreed that the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include include, and neither Seller nor any Subsidiary is granting, bargaining, selling, transferring, assigning, conveying or delivering to Buyer or a Buyer Designee, and neither Buyer nor any Buyer Designee is purchasing, acquiring or accepting from Seller or any Subsidiary, any of the following assetsrights, properties or assets set forth or described in paragraphs (a) through (j) below (the rights, properties and rights (tangible assets expressly excluded by this Section 2.2 or intangible and wherever located) (collectively, otherwise excluded by the terms of Section 2.1 from the Purchased Assets being referred to herein as the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller of Seller’s or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its AffiliatesAffiliate’s receivables, including all Intellectual Propertycash, Seller Marks cash equivalents, bank deposits or other intellectual property set forth on Schedule 2.2(a) to this Agreementsimilar cash items or employee receivables;
(b) (i) any attorney-client, work product or similar privilege Proprietary Information of Seller or any of its Affiliates or otherwise relating to or arising out of Affiliate other than the Program Business as a result of legal counsel representing Seller, any of its Affiliates Assigned Intellectual Property or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Licensed Intellectual Property;
(c) all any (i) confidential personnel records pertaining to any Business Employee, or (ii) other books and records that Seller or any Affiliate of Seller is required by Law to retain; provided, however, that Buyer shall have the right, to the extent permitted by Law, to make copies of any portions of such retained confidential personnel records and other books and records that relate to the Mobility Business, the Purchased Assets, the Assumed Liabilities or the Transferred Employees; and (iii) any information management system of Seller or any Affiliate of Seller other than those used or held for use primarily in the operation or conduct of the Mobility Business (or also used in other businesses of Seller for which Buyer has its own license to use; provided, however, that any such information management system is still an Excluded ContractsAsset for the purposes hereof) and contained within computer hardware included as a Purchased Asset pursuant to Sections 2.1(b) and (c);
(d) all any claim, right or interest of Seller or any Affiliate of Seller in or to any refund, rebate, abatement or other recovery for Taxes, together with any interest due thereon or penalty rebate arising therefrom, for any Excluded Tax AssetsTaxes;
(e) all security depositssubject to Section 5.8, ▇▇▇▇▇▇▇ depositsany rights to, bidor the use of, lease, utility and other deposits, and all other forms of deposit placed by Seller the “Agere,” “Agere Systems,” “LSI” or any of its Affiliates for the performance of a Transferred Contract or otherwise“LSI Corporation” trademarks;
(f) all cashthe Excluded Contracts, cash equivalents, credit cards the Nonassignable Licenses and bank accounts of Seller or any of its Affiliatesthe Excluded Leased Equipment;
(g) all Books and Records (including any Tax Return insurance policies or rights of Seller or any of its Affiliates), other than the Transferred Books and Recordsproceeds thereof;
(h) all employee and personnel records except as specified in Section 2.1, any of Seller Seller’s or any Affiliate’s rights, claims or causes of its Affiliates action against Third Parties relating to employees the assets, properties or operations of Seller or any the Mobility Business arising out of its Affiliates or transactions occurring prior to, and including, the Transferred Employees, other than the Transferred Business Employee RecordsClosing Date;
(i) except as specifically provided in Section 5.4 or the sponsorship ofapplicable Assignment and B▇▇▇ of Sale and Assumption Agreement for any particular jurisdiction, and all any of the assets or contracts maintained pursuant to or in connection with, all Seller Benefit of the Benefits Plans;; and
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assetsproperties, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties interests and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are Affiliate not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior related primarily to the Burgundy Closing shall constitute Excluded AssetsMobility Business (including the remainder of the Mobility Products Group).
Appears in 1 contract
Sources: Asset Purchase Agreement (Lsi Corp)
Excluded Assets. Notwithstanding anything Other than the Purchased Assets subject to the contrary in Section 2.1 of this Agreement2.01, from Buyer expressly understands and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toagrees that it is not purchasing or acquiring, and there Seller is not selling or assigning, any other assets or properties of Seller, and all such other assets and properties shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):). Excluded Assets include the following assets and properties of Seller:
(a) other than the Transferred IP all cash and the rights provided in this Agreement cash equivalents, bank accounts and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist securities of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementSeller;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but all Contracts that are not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Assigned Contracts;
(c) all Excluded ContractsIntellectual Property other than the Intellectual Property Assets;
(d) the corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Seller, all Excluded Tax Assetsemployee-related or employee benefit-related files or records, other than personnel files of Transferred Employees or Other Transferred Employees and any other books and records which Seller is prohibited from disclosing or transferring to Buyer under applicable Law and is required by applicable Law to retain;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, insurance policies of Seller and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwiserights to applicable claims and proceeds thereunder;
(f) subject to Section 6.05, all cashBenefit Plans and trusts or other assets attributable thereto;
(g) all Tax assets (including duty and Tax refunds, cash equivalents, credit cards rebates and bank accounts prepayments) of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records rights to any action, suit or claim of Seller any nature available to or any being pursued by Seller, whether arising by way of its Affiliates relating to employees of Seller counterclaim or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordsotherwise;
(i) all assets, properties and rights used by Seller in its businesses other than the sponsorship ofBusiness (including all assets, properties and all assets or contracts maintained pursuant to or rights used by Seller in connection with, all Seller Benefit Plansits data analytics and payment businesses);
(j) all any assets, properties and rights or claims specifically set forth on Section 2.02(j) of the Disclosure Schedules; and
(k) the rights which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Transaction Documents.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Acquired Assets shall not include any of the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliatescash, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementthe Cash Purchase Price (defined below);
(b) (i) any attorney-client, work product or similar privilege capital stock and other equity interests of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Debtors;
(c) all Excluded deposits and prepayments, except deposits and prepayments relating to Assumed Contracts;
(d) all Excluded Tax Assetsaccounts receivable;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwisepromissory notes receivable;
(f) all cash, cash equivalents, credit cards insurance and bank accounts of Seller or any of its Affiliatesrights in insurance;
(g) all Books and Records (including any Tax Return personally identifiable information of Seller or any of its Affiliates), other than the Transferred Books and RecordsDebtors’ former employees;
(h) all employee any books and personnel records of Seller or any of its Affiliates the Debtors not relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsAcquired Assets;
(i) all licenses, approvals and permits of any of the sponsorship of, and all assets or contracts maintained pursuant Debtors not related to or in connection with, all Seller Benefit Plansthe Acquired Assets;
(j) all rights or claims which accrue or will accrue to Seller or any causes of its Affiliates under this Agreement or action of any of the Ancillary AgreementsDebtors or the Estates, other than the Residual Causes of Action and the Acquired Causes of Action, including, without limitation, any causes of action arising under chapter 5 of the Bankruptcy Code (other than causes of action against Residual Claim Parties);
(k) any surety bonds or other financial assurances, any cash of any of the Excluded Prepaid ExpensesDebtors (wherever held) that secures or otherwise supports letters of credit serving as, securing or supporting financial assurances, and any deposits, escrows, surety bonds or other financial assurances and any cash or cash equivalents securing any surety bonds or financial assurances, including, without limitation Customs Bond (CBP Number 22C000RT5);
(l) all rights, title any rights to or claims for refunds or rebates of taxes; and interest The Excluded Assets are not being sold to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to Buyer hereunder. To the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as personally identifiable information of the Closing that relate to any eventsDebtors’ former employees is inadvertently included with the Acquired Assets, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable Buyer shall not use such information and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)promptly delete such information.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to Consistent with the contrary provisions of Section 13.1, nothing in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall Agreement will constitute or be excluded from the sale, transfer, conveyance, assignment and delivery to construed as conferring on either Purchaser, and the Transferred Assets neither Purchaser shall not include be entitled to purchase or acquire, any right, title or interest in, to or under the following assets, properties and rights interests, properties, facilities, rights, licenses or contracts (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”):"), except to the extent Seller owns an interest in such assets, interests, properties, facilities, rights, licenses or contracts as a tenant in common with the other STP Owners, in which event and to such extent, Seller's undivided interest in such assets, interests, properties, rights, licenses and contracts shall constitute Purchased Assets. The following are the Excluded Assets:
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller The assets listed or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth described on Schedule 2.2(a) ), which are related to this Agreementthe Purchased Assets but are specifically excluded from the Transactions;
(b) Certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests in joint ventures, partnerships, limited liability companies and other entities, except the assets comprising Seller's Decommissioning Funds to the extent assignable hereunder;
(c) Cash, cash equivalents, bank deposits, accounts and notes receivable (trade or otherwise), and similar working capital items, except for (i) any attorney-clientsuch assets on deposit with, work product or similar privilege under the control of, the Operating Agent and (ii) the assets comprising Seller's Decommissioning Funds;
(d) Any and all data and information pertaining to customers of Seller or any of its Affiliates, whether or not located at the Generation Facility;
(e) Rights in, to and under all contracts, agreements, arrangements or commitments of any nature to the extent not assigned to a Purchaser, or the obligations of which are not assumed by a Purchaser, under the terms of this Agreement;
(f) All trade accounts receivable, notes, bonds and other evidences of indebtedness and any other rights to receive payments accrued or arising out of sales from the Generation Facility prior to the Closing and the security arrangements, if any, related thereto, including any rights with respect to any third party collection procedures or any other actions or proceedings which have been commenced in connection therewith;
(g) Rights arising under this Agreement or any instrument or document Executed and delivered pursuant to the terms hereof;
(h) Any and all books and records not described in Section 2.1(g);
(i) All of Seller's rights under any Generation Facility Insurance Policies in respect to any and all claims made against Seller or any of Seller's Affiliates under such policies whether such claims are asserted before, on or otherwise after the Closing Date and all rights to any proceeds payable in respect of such claims under any such policy;
(j) Any claims or causes of action, choses in action, rights of recovery, rights of set-off, rights to refunds and similar rights, including but not limited to claims for refunds, prepayments, offsets, recoupments, and insurance proceeds, condemnation awards, judgments and the like and rights in, to or under any insurance policy or refund of Taxes, relating to or arising out of the Program Business period prior to Closing, (i) that do not arise from events, circumstances, occurrences or conditions that create a liability for which a Purchaser is responsible hereunder as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s)an Assumed Liability, and (ii) the portions in respect of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right incurred out-of- pocket costs or losses on the basis of which such claims, choses in action, rights of recovery, rights of set-off, rights to receive as of the Closing that relate to any eventsrefunds or similar rights may be asserted, circumstances or occurrences prior to the Closing (other than but only to the extent provided in Section 2.1(m))of such costs and losses incurred prior to Closing;
(pk) All privileged or proprietary materials, documents, information, media, methods and processes, except to the extent owned by the STP Owners in common or by the Operating Agent on behalf of the STP Owners or on behalf of Seller as one of the STP Owners, and any and all accounts receivablerights to use the same, notes receivable, rebates receivable including the AEP Marks and other miscellaneous receivables intangible assets of an intellectual property nature, and computer software that is proprietary to Seller or any of its Affiliates, or the use of which under the pertinent license therefor is limited to operation by Seller or any of its Affiliates or on equipment owned by Seller or any of its Affiliates, including those listed or described on Schedule 2.2(k);
(il) The right to receive mail and other communications relating to any of the Excluded Assets or Excluded Liabilities, all of which mail and other communications, to the extent that they are not related received by a Purchaser, shall promptly be forwarded by such Purchaser to the Program Business or Seller;
(iim) that are related to the Business to the extent Claims relating to or arising out pertaining to any refund or credit on or after the Closing Date of all or any part of Department of Energy Decommissioning and Decontamination Fees paid by or on behalf of Seller in respect of the operation of the Program Business prior to the ClosingGeneration Facility;
(qn) Seller's notional account balance at NEIL attributable to any Generation Facility Insurance Policy, includi▇▇ ▇EIL Accidental Outage Policy coverage with respect to the STP Interes▇ ▇▇ the Generation Facility, and all Manufacturing Registrationspolicyholder distributions in the future in respect of same;
(ro) all information technology systemsAll tariffs, hardware agreements and arrangements to which Seller is a party for the purchase or sale of electric capacity and/or energy or for the purchase of transmission or ancillary services, except for tariffs, agreements or arrangements to which Seller is a party because such tariffs, agreements or arrangements were entered into by the STP Owners in common or by the Operating Agent as agent for the STP Owners;
(including all desktops, smartphones, tablets, laptops, printers, fax/scan machinesp) and software All electrical transmission or distribution assets (whether in source code as opposed to generation facilities or object codeother assets) of Seller or any of its Affiliates located at or forming a part of the Generation Facility, including all switchyard facilities, substation facilities and support equipment and the easements to use the real property on which they are located, if any, as contemplated in the STP Interim Restructuring Agreement, as well as all related licenseeasements, maintenance permits, contracts, warranties, rights and service Contracts and related documentationentitlements, and all related technology, data, databases, database rights, designs, processes, methods and other know-how to the extent they relate to or benefit such transmission or distribution assets (other than Transferred any electrical transformation, interconnection or similar equipment identified on Schedule 2.1(b), all of which is included as Purchased Assets);
(sq) all Actions available to Any contract, agreement, arrangement or being pursued by Seller or commitment of any nature in respect of its Affiliates (including any Asset Selling Entity) to intercompany transaction between Seller, on the extent relating to or arising out of (i) one hand, and any of Affiliate thereof, on the other assetshand, properties whether or rights not such transaction relates to any contribution to capital, loan, the provision of Seller goods or any of its Affiliates that constitute Excluded Assets services, tax sharing arrangements, payment arrangements, intercompany advances, charges or balances, or the like, excluding the Ancillary Agreements and the Surviving Intercompany Arrangements (ii) any Excluded Liability;
(t) all assetscollectively, properties and rights described on Schedule 2.2(t) to this Agreementthe "Intercompany Arrangements"); and
(ur) Assets, interests, properties, facilities, rights, licenses or contracts of Seller that are not used or held for use primarily in connection with the avoidance ownership of doubtthe STP Interest or operation of the Generation Facility. At any time or from time to time, up to ninety (90) days following the Closing, any and all other assetsof the Excluded Assets may be removed from the Generation Facility by Seller (at no expense to a Purchaser, properties but without charge by a Purchaser for temporary storage), provided that Seller shall do so in a manner that does not unduly or unnecessarily disrupt normal business activities at the Generation Facility, and rights provided further that Excluded Assets may be retained at the Generation Facility to the extent permitted by easements, licenses, agreements or similar arrangements in favor of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Texas Genco Holdings Inc)
Excluded Assets. Notwithstanding anything to Consistent with the contrary provisions of Section 13.1, nothing in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall Agreement will constitute or be excluded from the sale, transfer, conveyance, assignment and delivery to construed as conferring on either Purchaser, and the Transferred Assets neither Purchaser shall not include be entitled to purchase or acquire, any right, title or interest in, to or under the following assets, properties and rights interests, properties, facilities, rights, licenses or contracts (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”):"), except to the extent Seller owns an interest in such assets, interests, properties, facilities, rights, licenses or contracts as a tenant in common with the other STP Owners, in which event and to such extent, Seller's undivided interest in such assets, interests, properties, rights, licenses and contracts shall constitute Purchased Assets. The following are the Excluded Assets:
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller The assets listed or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth described on Schedule 2.2(a) ), which are related to this Agreementthe Purchased Assets but are specifically excluded from the Transactions;
(b) Certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and interests in joint ventures, partnerships, limited liability companies and other entities, except the assets comprising Seller's Decommissioning Funds to the extent assignable hereunder;
(c) Cash, cash equivalents, bank deposits, accounts and notes receivable (trade or otherwise), and similar working capital items, except for (i) any attorney-clientsuch assets on deposit with, work product or similar privilege under the control of, the Operating Agent and (ii) the assets comprising Seller's Decommissioning Funds;
(d) Any and all data and information pertaining to customers of Seller or any of its Affiliates, whether or not located at the Generation Facility;
(e) Rights in, to and under all contracts, agreements, arrangements or commitments of any nature to the extent not assigned to a Purchaser, or the obligations of which are not assumed by a Purchaser, under the terms of this Agreement;
(f) All trade accounts receivable, notes, bonds and other evidences of indebtedness and any other rights to receive payments accrued or arising out of sales from the Generation Facility prior to the Closing and the security arrangements, if any, related thereto, including any rights with respect to any third party collection procedures or any other actions or proceedings which have been commenced in connection therewith;
(g) Rights arising under this Agreement or any instrument or document Executed and delivered pursuant to the terms hereof;
(h) Any and all books and records not described in Section 2.1(g);
(i) All of Seller's rights under any Generation Facility Insurance Policies in respect to any and all claims made against Seller or any of Seller's Affiliates under such policies whether such claims are asserted before, on or otherwise after the Closing Date and all rights to any proceeds payable in respect of such claims under any such policy;
(j) Any claims or causes of action, choses in action, rights of recovery, rights of set-off, rights to refunds and similar rights, including but not limited to claims for refunds, prepayments, offsets, recoupments, and insurance proceeds, condemnation awards, judgments and the like and rights in, to or under any insurance policy or refund of Taxes, relating to or arising out of the Program Business period prior to Closing, (i) that do not arise from events, circumstances, occurrences or conditions that create a liability for which a Purchaser is responsible hereunder as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s)an Assumed Liability, and (ii) the portions in respect of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right incurred out-of- pocket costs or losses on the basis of which such claims, choses in action, rights of recovery, rights of set-off, rights to receive as of the Closing that relate to any eventsrefunds or similar rights may be asserted, circumstances or occurrences prior to the Closing (other than but only to the extent provided in Section 2.1(m))of such costs and losses incurred prior to Closing;
(pk) All privileged or proprietary materials, documents, information, media, methods and processes, except to the extent owned by the STP Owners in common or by the Operating Agent on behalf of the STP Owners or on behalf of Seller as one of the STP Owners, and any and all accounts receivablerights to use the same, notes receivable, rebates receivable including the AEP Marks and other miscellaneous receivables intangible assets of an intellectual property nature, and computer software that is proprietary to Seller or any of its Affiliates, or the use of which under the pertinent license therefor is limited to operation by Seller or any of its Affiliates or on equipment owned by Seller or any of its Affiliates, including those listed or described on Schedule 2.2(k);
(il) The right to receive mail and other communications relating to any of the Excluded Assets or Excluded Liabilities, all of which mail and other communications, to the extent that they are not related received by a Purchaser, shall promptly be forwarded by such Purchaser to the Program Business or Seller;
(iim) that are related to the Business to the extent Claims relating to or arising out pertaining to any refund or credit on or after the Closing Date of all or any part of Department of Energy Decommissioning and Decontamination Fees paid by or on behalf of Seller in respect of the operation of the Program Business prior to the ClosingGeneration Facility;
(qn) Seller's notional account balance at ▇▇▇▇ attributable to any Generation Facility Insurance Policy, including ▇▇▇▇ Accidental Outage Policy coverage with respect to the STP Interest or the Generation Facility, and all Manufacturing Registrationspolicyholder distributions in the future in respect of same;
(ro) all information technology systemsAll tariffs, hardware agreements and arrangements to which Seller is a party for the purchase or sale of electric capacity and/or energy or for the purchase of transmission or ancillary services, except for tariffs, agreements or arrangements to which Seller is a party because such tariffs, agreements or arrangements were entered into by the STP Owners in common or by the Operating Agent as agent for the STP Owners;
(including all desktops, smartphones, tablets, laptops, printers, fax/scan machinesp) and software All electrical transmission or distribution assets (whether in source code as opposed to generation facilities or object codeother assets) of Seller or any of its Affiliates located at or forming a part of the Generation Facility, including all switchyard facilities, substation facilities and support equipment and the easements to use the real property on which they are located, if any, as contemplated in the STP Interim Restructuring Agreement, as well as all related licenseeasements, maintenance permits, contracts, warranties, rights and service Contracts and related documentationentitlements, and all related technology, data, databases, database rights, designs, processes, methods and other know-how to the extent they relate to or benefit such transmission or distribution assets (other than Transferred any electrical transformation, interconnection or similar equipment identified on Schedule 2.1(b), all of which is included as Purchased Assets);
(sq) all Actions available to Any contract, agreement, arrangement or being pursued by Seller or commitment of any nature in respect of its Affiliates (including any Asset Selling Entity) to intercompany transaction between Seller, on the extent relating to or arising out of (i) one hand, and any of Affiliate thereof, on the other assetshand, properties whether or rights not such transaction relates to any contribution to capital, loan, the provision of Seller goods or any of its Affiliates that constitute Excluded Assets services, tax sharing arrangements, payment arrangements, intercompany advances, charges or balances, or the like, excluding the Ancillary Agreements and the Surviving Intercompany Arrangements (ii) any Excluded Liability;
(t) all assetscollectively, properties and rights described on Schedule 2.2(t) to this Agreementthe "Intercompany Arrangements"); and
(ur) Assets, interests, properties, facilities, rights, licenses or contracts of Seller that are not used or held for use primarily in connection with the avoidance ownership of doubtthe STP Interest or operation of the Generation Facility. At any time or from time to time, up to ninety (90) days following the Closing, any and all other assetsof the Excluded Assets may be removed from the Generation Facility by Seller (at no expense to a Purchaser, properties but without charge by a Purchaser for temporary storage), provided that Seller shall do so in a manner that does not unduly or unnecessarily disrupt normal business activities at the Generation Facility, and rights provided further that Excluded Assets may be retained at the Generation Facility to the extent permitted by easements, licenses, agreements or similar arrangements in favor of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions of Section 1.01 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not purchase any assets, properties or rights of any Company of any kind or nature whatsoever other than the Purchased Assets (the “Excluded Assets”). Excluded Assets shall include:
(a) all Cash and Equivalents and rights to all bank accounts;
(b) Tax Returns of Sellers and any refund or credit of Taxes of any Seller;
(c) all insurance policies of Seller and captive insurance company membership and other rights (and any equity interest therein) and all rights to applicable claims, refunds, and proceeds thereunder;
(d) all rights to any claims and litigation available to or being pursued by any Seller, whether arising by counterclaim or otherwise and all subrogation and contribution claims and proceeds except those identified in Section 1.01(k);
(e) Each Seller’s (i) organizational documents and stock certificates or other indicia of ownership, corporate seal, and minute books, (ii) Tax Returns and books, records, or information reasonably necessary to prepare and/or file Tax Returns, (iii) employee benefit-related files or records, (iv) other books and records which Seller is prohibited from disclosing or transferring to Buyer under applicable Law or is required by applicable Law to retain, and (v) books and records related to the Excluded Assets and Excluded Liabilities (provided, that in the case of each of the foregoing, unless prohibited by Law, Seller will afford Buyer and the Companies access to and copies of any such books, records, and other materials retained by Seller to the extent reasonably requested by Buyer or the Companies for a proper purpose);
(f) the rights which accrue or will accrue to Seller under the Transaction Documents;
(g) all Plans and assets attributable thereto;
(h) all contracts other than the Assigned Contracts;
(i) any intercompany assets solely between or among any of the Sellers and/or ▇▇▇▇▇▇▇ or any Affiliate, none of which are included as a receivable in the Net Working Capital calculation; and
(j) all assets set forth on Schedule 1.02 (the “Excluded Personal Assets”). Notwithstanding anything to the contrary set forth in Section 2.1 of this Agreement or in any document, certificate or instrument delivered pursuant to or in connection with this Agreement, from Buyer acknowledges and after agrees that all of the Closingfollowing shall remain the property of the Companies, Seller and neither Buyer nor any of its Affiliates shall retain have any interest therein: (w) all records and reports prepared or received by any Company or any Company’s Affiliates in connection with the sale of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) Sellers’ businesses (collectively, the “Excluded AssetsBusiness”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any including all analyses relating to the Business or Buyer so prepared or received; (x) all confidentiality contracts with prospective purchasers of the Ancillary Agreements Business or any Action described by Section 2.2(s), portion thereof; (y) all bids and expressions of interest received from prospective purchasers of the Business or any portion thereof with respect thereto; and (iiz) all privileged materials, documents and records in the portions possession of any Company or any Company’s Affiliates to the extent such materials, documents of Seller and records are related to any Excluded Asset or Excluded Liability; provided, that the materials, documents and records in clause (z) shall be made available to Buyer (subject to entering into a confidentiality agreement and/or a joint defense agreement if so requested by the applicable Company or Companies) if any Buyer or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) becomes subject to any claim or litigation and such privilege described in clause (i) (materials, documents or records are necessary for Buyer or such documentsAffiliate to defend such claim or litigation. Buyer further acknowledges and agrees that, with respect to any claim or litigation between a Company or one of its Affiliates on the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other depositsone hand, and all other forms of deposit placed by Seller Buyer or any of its Affiliates for on the performance other hand, only such Company or its applicable Affiliates may waive any evidentiary privilege that may attach to a pre-Closing communication that is determined by a court of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating competent jurisdiction to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship ofbe subject to attorney-client privilege, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of neither Buyer nor its Affiliates under this Agreement or any of Affiliate shall have the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as compel disclosure of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)such privileged information.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pam Transportation Services Inc)
Excluded Assets. Notwithstanding anything to the contrary contained herein, and subject to the transfer of any of the rights, title and interest in Section 2.1 and to the assets transferred by Seller under any of this Agreementthe Transaction Documents, from the Purchased Assets shall not include, and after the ClosingSeller shall retain all of its rights, title and interest in and to, all assets, properties or rights of Seller and its Affiliates shall retain all other than those specifically enumerated as Purchased Assets in Section 3.01 (the "Excluded Assets"). Without limiting the generality of their respective rightsthe foregoing, titles and interests to the extent not expressly listed as a Purchased Asset in and toSection 3.01, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):include:
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual PropertyProperty owned, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates licensed or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated used by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(gb) all Books and Records (including any Tax Return of Seller right, title or interest in Seller's or any of its Affiliates)' corporate name, corporate service ▇▇▇▇ or corporate logo used with respect to the Product;
(c) any original books or records of Seller (other than the Transferred Books Regulatory and RecordsClinical Materials);
(d) the labor of any employees of Seller;
(e) any refunds of Income Taxes or any prepaid Income Taxes arising from or with respect to the Purchased Assets prior to the Closing Date or arising from or with respect to the operations of the Business for periods (or portions thereof) ending on or prior to the Closing Date;
(f) any assets of Seller and its Affiliates not held or owned by or used exclusively in connection with the Business;
(g) any assets used in the manufacture of the Product;
(h) all employee and personnel records any licenses or permits relating to the manufacture of the Product, including any regulatory approvals issued to Seller by the FDA, the DEA or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsGovernmental Authority;
(i) any rights or claims of Seller under any of the sponsorship of, Transaction Documents or the agreements and all assets instruments delivered to Seller by Purchaser or contracts maintained Guarantor pursuant to or in connection with, all Seller Benefit Plans;any of the Transaction Documents; or
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts assets related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Liabilities.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreementforegoing, from and after the Closing, Seller and its Affiliates Assets shall retain all of their respective rights, titles and interests in and tonot include, and there shall be is excepted, reserved and excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) sale contemplated hereby (collectively, the “Excluded Assets”):
): (a) other than all credits and refunds and all accounts, instruments and general intangibles (as such terms are defined in the Transferred IP and Texas Uniform Commercial Code) attributable to the rights provided in this Agreement and Assets with respect to any period of time prior to the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
Effective Time; (b) all claims of Sellers for refunds of or loss carry forwards with respect to (i) any attorney-clientad valorem, work product or similar privilege of Seller severance, production or any of its Affiliates other taxes attributable to any period prior to the Effective Time, (ii) income or otherwise relating franchise taxes, or (iii) any taxes attributable to or arising out of the Program Business as a result of legal counsel representing Sellerother Excluded Assets, any of its Affiliates or the Program Business and such other refunds, and rights thereto, for amounts paid in connection with the transactions contemplated by this AgreementAssets and attributable to the period prior to the Effective Time, including refunds of amounts paid under any of the Ancillary Agreements gas gathering or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
transportation agreement; (c) all Excluded Contracts;
proceeds, income or revenues (dand any security or other deposits made) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating attributable to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or Assets for any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences period prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivableEffective Time, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any other Excluded Liability;
Assets; (td) all assetsof Sellers’ proprietary computer software, properties technology, patents, trade secrets, copyrights, names, trademarks, logos and other intellectual property; (e) all of Sellers’ rights and interests in geological and geophysical data that is interpretive in nature or which cannot be transferred without the consent of or payment to any Third Party; (f) all documents and instruments of Sellers that may be protected by an attorney-client privilege; (g) data and other information that cannot be disclosed or assigned to Buyer as a result of confidentiality or similar arrangements under agreements with persons unaffiliated with Sellers; (h) all audit rights arising under any of the Contracts or otherwise with respect to any period prior to the Effective Time or to any of the other Excluded Assets; (i) all corporate, partnership, income tax records of Sellers; (j) the original of all Records; and (i) in addition to the foregoing, those items, such as vehicles and certain equipment, supplies and office equipment, or any other items or property interests described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)1.03.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the The words “Excluded Assets”):
” mean (a) other than the Transferred IP and lease for the rights provided off track betting parlor operated by Peninsula Gaming, LLC in this Agreement and the Ancillary AgreementsNew Iberia, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
Louisiana; (b) (i) any attorney-clientcash, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of other than cash deposited in Deposit Accounts as defined in the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Loan Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
; (c) all Excluded Contracts;
assets securing Purchase Money Obligations or Capitalized Lease Obligations permitted to be incurred under the Loan Agreement to the extent a second Lien (as such terms are defined in the Loan Agreement) would not be permitted under the documents evidencing such obligations; and (d) all Excluded Tax Assets;
any agreements, permits, licenses (e) all security depositsincluding Gaming Licenses as defined in the Loan Agreement), or the like (including any parcels of the Warner Land as defined in the Loan Agreement that are subject to the mortgage granted by M▇▇▇▇▇▇▇▇ depositsto the seller of such land) solely in the event and to the extent that: (i) such agreements, bidpermits, leaselicenses, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records like (including any Tax Return parcels of Seller the Warner Land as defined in the Loan Agreement that are subject to the mortgage granted by M▇▇▇▇▇▇▇▇ to the seller of such land) cannot be subjected to a consensual security interest in favor of Mortgagee without the consent of the licensor or any of its Affiliates)other party to such agreement, other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates permit, license, or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or like; (ii) any Excluded Liability;
such restriction is effective and enforceable under applicable law; and (tiii) such consent is not obtainable by any Borrower; provided, that each Borrower agrees to use all assetscommercially reasonable efforts (which shall not require the payment of cash to, properties or the reimbursement of fees and rights described on Schedule 2.2(texpenses of the consenting party or the making of any material concessions under any such agreement, permit, license (including a Gaming License as defined in the Loan Agreement) or the like (including any parcels of the Warner Land as defined in the Loan Agreement that are subject to the mortgage granted by M▇▇▇▇▇▇▇▇ to the seller of such land) to this obtain all requisite consents to enable such Borrower to provide a security interest in such agreement, permit, license (including Gaming Licenses as defined in the Loan Agreement) or the like; provided, further, however, that (i) Excluded Assets shall not include (and
(u, accordingly, the Collateral as defined in the Loan Agreement shall include) for the avoidance any and all proceeds of doubt, all other assets, properties and rights of Seller or any of its Affiliates, the assets described in clause (d) above and any and all proceeds of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates the assets described in clauses (b) and (c) above or of any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior other Collateral to the Burgundy Closing shall extent such proceeds do not constitute Excluded Assets), and (ii) any agreement, permit, license, or the like qualifying as an Excluded Asset under clause (d) above no longer shall constitute an Excluded Asset (and instead shall constitute Collateral as defined in the Loan Agreement) immediately from and after such time as the licensor or other party to such agreement, permit, license, or the like consents to the grant of a security interest in favor of Mortgagee in such agreement, permit, license, or the like or the prohibition against granting a security interest therein in favor of Mortgagee shall cease to be effective.
Appears in 1 contract
Sources: Multiple Obligations Mortgage (Peninsula Gaming, LLC)
Excluded Assets. Notwithstanding anything contained in this Agreement to the contrary in Section 2.1 of this Agreementcontrary, from and after other than the ClosingAcquired Assets, Seller and its Affiliates shall retain all of their respective other rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible assets of the Sellers, including the following rights, properties and wherever located) assets of the Sellers, as the same shall exist on the Closing Date (collectively, the “Excluded Assets”):), will not be included in the Acquired Assets, and the Sellers shall retain all their right, title and interest in and to the Excluded Assets:
(a) other than the Transferred IP all cash and the rights provided in this Agreement cash equivalents, including checks, commercial paper, treasury bills, certificates of deposit and the Ancillary Agreementsmarketable securities, any Intellectual Propertybank accounts and lockbox arrangements of the Sellers, Seller Marks (and any social media handles owned by accounts receivable that are owed or payable to any Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementany Affiliate thereof;
(b) (i) all intercompany accounts receivable that are owed or payable to any attorney-client, work product or similar privilege of Seller or any of its Affiliates Affiliate thereof, or otherwise relating as to or arising out of the Program Business as a result of legal counsel representing Seller, which any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records Affiliate thereof is an obligor or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)is otherwise responsible or liable;
(c) all Excluded Contractscurrent and prior director and officer or similar fiduciary or errors and omissions insurance policies and all rights thereunder;
(d) all Excluded rights with respect to deferred Tax Assetsassets or refunds for Taxes;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and any shares of capital stock or other deposits, and all other forms equity interests of deposit placed by any Seller or any Affiliate thereof (including the shares of its Affiliates capital stock of Savient Pharma Ireland Limited and Savient International Limited) or any securities convertible into, exchangeable or exercisable for the performance shares of a Transferred Contract capital stock or otherwiseother equity interests of any Seller or any Affiliate thereof;
(f) all cashthe company seal, cash equivalentsminute books, credit cards stock certificates, stock or equity record books, Tax records, work papers and bank accounts such other books and records as pertain to the organization, qualification to do business, existence or capitalization of any Seller or any Affiliate thereof, books and records that the Sellers are required to retain under applicable Law and books and records that relate primarily to an Excluded Asset or Excluded Liability; provided, that copies of its Affiliatessuch books and records shall be made available to the Purchaser upon reasonable request to the extent permitted by applicable Law;
(g) all Books copies retained by the Sellers of original books and Records (including any Tax Return of Seller or any of its Affiliates), other than records included in the Transferred Books and RecordsAcquired Assets;
(h) all employee avoidance actions and personnel records similar rights, claims and causes of Seller or any action, including under Sections 544 through 553, inclusive, of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsBankruptcy Code;
(i) all rights, claims or causes of action of any Seller arising under this Agreement, the sponsorship of, and all assets Ancillary Documents or contracts maintained the Confidentiality Agreement or arising under the Parent Confidentiality Agreements (to the extent not assigned to the Purchaser pursuant to or in connection with, all Seller Benefit PlansSection 5.13(b));
(j) all rights rights, claims or claims which accrue causes of action of any Seller arising under the litigation listed or will accrue to Seller described on Schedule 1.2(j) (whether or any of its Affiliates under this Agreement or any not asserted as of the Ancillary AgreementsClosing Date) or the facts and circumstances underlying such litigation;
(k) all rights, claims or causes of action by or in the Excluded Prepaid Expensesright of any Seller against any current or former director or officer of any Seller;
(l) the Benefit Plans, all rights, title and interest to real property assets of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) such Benefit Plans and all trust agreements, administrative service contracts, insurance policies and other Contracts related to thereto and all rights of the ownership, lease, sublease, grant, license or any other similar arrangement Sellers with respect to any real propertyof the foregoing;
(m) all Swiss Manufacturing Facilities Tangible Personal Propertyreceivables, claims or causes of action that relate primarily to any Excluded Asset or Excluded Liability;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)))real property leases;
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of equipment, computers, furniture, furnishings, fixtures, office supplies, vehicles, tools and all other tangible personal property not included in the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));Acquired Assets; and
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to Contracts not included in the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Assigned Contracts.
Appears in 1 contract
Sources: Acquisition Agreement (Savient Pharmaceuticals Inc)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the saleSellers do not sell, transfer, conveyanceconvey, assignment and delivery assign or deliver to the Purchaser, the Purchaser shall not purchase or otherwise acquire, and the Transferred Assets shall not include include, any right, title and interest in or to any of the following assetsproperties, properties assets or intangibles of the Sellers, all of which shall be retained by the Sellers or any of their Affiliates (such properties, assets and rights (tangible or intangible and wherever located) (collectively, intangibles being collectively referred to hereinafter as the “Excluded Assets”):
(a) other than except to the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks extent (and any social media handles owned by Seller or its Affiliates that consist of Seller Markssolely to the extent) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) in Section 2.1, all the properties, assets and rights of every kind and description and wherever located, whether tangible or intangible, real, personal or mixed, used in, held for use in, or primarily related to this Agreementthe Sellers’ Other Businesses;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out rights of the Program Business as a result of legal counsel representing Seller, any of its Sellers or their Affiliates or the Program Business in connection with the transactions contemplated by arising under this Agreement, any of the Ancillary Agreements other Transaction Documents or any Action described by Section 2.2(s), and (ii) from the portions consummation of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Contemplated Transactions;
(c) all Excluded Contracts;any cash and cash equivalents, securities and negotiable instruments on hand, in lock boxes, in financial institutions or elsewhere, including any cash residing in any collateral cash account securing any obligation or contingent obligation that is not an Assumed Liability;
(d) all Excluded Tax Assets;
any right, title and interest of the Sellers in and to any real property (e) all security deposits, including the ▇▇▇ ▇▇▇▇▇▇▇▇ depositsLease and the Allston Lease), bidwhether owned, leaseleased or otherwise occupied, utility and other deposits, and all other forms of deposit placed by Seller or than the Transferred Leases;
(e) any of its Affiliates for Intellectual Property rights that are not Business Intellectual Property (subject to the performance of a Transferred Contract or otherwise;rights granted to the Purchaser under the Shared Intellectual Property License Agreements);
(f) all cashexcept as specifically provided under Section 2.1(l), cash equivalentsany insurance policies Relating to the Business and any claims, credit cards credits, causes of action or rights thereunder and bank accounts of Seller or any of its Affiliatesproceeds thereof;
(g) all Books and Records (including any Tax Return assets of Seller or any of its Affiliates), other than the Transferred Books and Records;Benefit Plan;
(h) all employee and personnel records any right to any refund or credit with respect to Taxes in accordance with the provisions of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsArticle IX;
(i) the sponsorship of, and all any assets or contracts maintained pursuant to or that have been disposed of in connection with, all Seller Benefit Plans;
(jcompliance with Section 6.1(b)(ii) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of after the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title date hereof and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(qj) all Manufacturing Registrations;
any books, records and files (r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entityi) to the extent relating to or arising out of (i) any of the other assetsSellers’ Other Businesses, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or Excluded Liabilities, wherever located, including the tax returns and books, records and files relating to income and similar Taxes of the Sellers (other than Tax Returns of the Transferred Subsidiaries), and (ii) any Excluded Liability;
(t) all assetscomprising minute books, properties transfer books, formation records and rights described on Schedule 2.2(t) similar documents of the Sellers and each of the Affiliates other than the Transferred Subsidiaries; provided, to this Agreement; the extent such books, records or files also relate to the Business, Transferred Assets or Assumed Liabilities, the Sellers shall provide copies thereof to the Purchaser upon request of the Purchaser; and
(uk) for any goodwill and other intangible assets associated with the avoidance of doubt, all other assets, properties Excluded Assets and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Sellers’ Other Businesses.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Houghton Mifflin Harcourt Co)
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include and Purchaser shall not acquire any interest in or any rights under, in or relating to, the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”):
"): (a) other than the Transferred IP any cash, cash equivalents, short-term investments and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
bank accounts; (b) all items of Excluded Intellectual Property; (ic) any attorney-client, work product or similar privilege of intercompany receivables reflecting indebtedness from Seller or any of its Affiliates, on the one hand, to any other Affiliate of Seller, on the other hand; (d) the capital stock, notes and other securities of, and all other interests of Seller or its Affiliates in, any Person, including all Affiliates of Seller, except as set forth in Section 1.1(f); (e) any insurance policies of Seller or otherwise its Affiliates and all rights of Seller or its Affiliates of every nature and description under or arising out of such insurance policies; (f) any rights to Tax refunds, credits or similar benefits, together with any interest due thereon or penalty rebate arising therefrom, relating to or arising out of the Program Vuforia Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, Purchased Assets and attributable to a Pre-Closing Tax Period; (g) any of the Ancillary Agreements or any Action described by Section 2.2(s), and claims (ii) the portions including claims for infringement of any documents Transferred Intellectual Property rights that occurred prior to the Closing Date) and causes of action of Seller or its Affiliates against other Persons (regardless of whether such claims or causes of action have been asserted by Seller or its Affiliates) and any rights of indemnity, warranty rights, rights of contribution, rights to refunds, rights of reimbursement and other rights of recovery possessed by Seller or its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any regardless of whether such privilege described in clause (i) (such documents, the “Privileged Seller Documents”rights are currently exercisable);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
; (h) all employee and personnel records rights of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of and the Ancillary Agreements;; and 2
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties rights and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, assets that are not specifically addressed by referred to in Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)1.1.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreementto the contrary, from it is hereby expressly acknowledged and after agreed that the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include include, and neither Seller nor any of the following assetsAffiliates is selling, transferring, assigning, conveying or delivering to Buyer, and Buyer is not purchasing, acquiring or accepting from Seller or any of the Subsidiaries, any of the rights, properties or assets set forth on or described in paragraphs (a) through (i) below (the rights, properties and rights (tangible or intangible and wherever located) (collectively, assets expressly excluded by this Section 2.2 from the Purchased Assets being referred to herein as the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreementsany cash, any Intellectual Propertycash equivalents, Seller Marks (and any social media handles owned by bank deposits or similar cash items or employee receivables of Seller or its Affiliates that consist any Affiliate of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementSeller;
(b) (i) any attorney-client, work product or similar privilege Proprietary Subject Matter of Seller or any Affiliate of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or other than the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Intellectual Property;
(c) all any claim, right or interest of Seller or any Affiliate of Seller in or to any refund, rebate, abatement or other recovery for Taxes, together with any interest due thereon or penalty rebate arising therefrom, for any Pre-Closing Tax Period;
(d) the Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms any insurance policies or rights of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwiseproceeds thereof;
(f) all cash, cash equivalents, credit cards invoiced and bank accrued accounts of Seller or any of its Affiliatesreceivable pertaining to inventory shipments prior to the Closing Date;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliatesitems listed on Schedule 2.2(g), other than the Transferred Books and Records;
(h) all employee the Retained Seller Intellectual Property and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;Retained Patents; and
(i) the sponsorship of, each of Seller’s HP 93000 and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)HP 83000 integrated circuit test equipment.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the saledoes not sell, transfer, conveyanceconvey, assignment and delivery assign or deliver to the Purchaser, and the Transferred Purchaser shall not purchase or otherwise acquire, and the Purchased Assets shall not include include, any right, title and interest in or to any of the following assetsassets of the Seller, properties and rights all of which shall be retained by the Seller (tangible or intangible and wherever located) (collectively, such assets being collectively referred to hereinafter as the “Excluded Assets”):
(a) other than except to the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks extent (and any social media handles owned by Seller or its Affiliates that consist of Seller Markssolely to the extent) set forth in Section 2.1(a), Section 2.1(c)(2), Section 2.1(e)(2), Section 2.1(f), Section 2.1(g), Section 2.1(h), Section 2.1(j), Section 2.1(k), Section 2.1(l) and other intellectual property Section 2.1(m), all the assets, rights and properties of every kind and description and wherever located, whether tangible or intangible, real, personal or mixed, used in, held for use in, or related to the Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementOther Businesses;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out all rights of the Program Business as a result of legal counsel representing Seller, any of its Affiliates Seller arising under this Agreement or the Program Business in connection with Ancillary Agreements, or from the consummation of the transactions contemplated by this Agreement, any of the Ancillary Agreements hereby or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)thereby;
(c) all Excluded Contractscash and cash equivalents, securities (other than the RentWiki Holdco, LLC securities owned by the Seller) and negotiable instruments on hand, in lock boxes, in financial institutions or elsewhere, including any cash residing in any collateral cash account securing any obligation or contingent obligation;
(d) all Excluded Tax Assetsreceivables or accounts or rights under any Contract between the Seller and any of its Members (or Affiliates of any of its Members), except for all receivables relating to wholesale fees or profit pass-over fees due from Members (or any Affiliates of Members) under the Contracts set forth on Schedule 7.7 in respect of pre-Closing sales by Members (or such Affiliates) of Products;
(e) all security depositsexcept as set forth on Schedule 2.1(e), ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, any and all other forms right, title and interest of deposit placed by the Seller in and to any Real Property, whether owned, leased or any of its Affiliates for otherwise and whether or not related to the performance of a Transferred Contract or otherwiseBusiness;
(f) all cashIntellectual Property rights, cash equivalents, credit cards except the Business Intellectual Property and bank accounts of Seller or any of its Affiliatesthe rights to Intellectual Property granted under the Business Contracts;
(g) all Books insurance policies relating to the Business and Records (including any Tax Return all claims, credits, causes of Seller action or any of its Affiliates), other than the Transferred Books rights thereunder and Recordsproceeds thereof;
(h) all assets of any employee and personnel records of Seller or any of its Affiliates relating independent contractor compensation, benefit plan, program or arrangement that is maintained or contributed to employees of Seller or any of its Affiliates or by the Transferred EmployeesSeller, other than except for those assets that are transferred to the Transferred Business Employee RecordsPurchaser pursuant to Article VIII;
(i) any right to any refund or credit with respect to Taxes in accordance with the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plansprovisions of Article IX;
(j) all rights or claims which accrue or will accrue to Seller or any assets that have been disposed of its Affiliates under in compliance with this Agreement or any of after the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title date hereof and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(qk) all Manufacturing Registrations;
Books, Records and Files (r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity1) to the extent relating to or arising out of (i) any of the other assetsSeller Other Businesses, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or Excluded Liabilities, wherever located, including the Tax Returns and Books, Records and Files relating to income and similar Taxes of the Seller or its Members, and (ii2) any Excluded Liability;
(t) all assetscomprising minute books, properties transfer books, formation records and rights described on Schedule 2.2(t) to this Agreementsimilar documents of the Seller; and
(ul) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assetsassets set forth on Schedule 2.2(l).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of 2.01 or elsewhere in this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):): shall not be part of the sale and purchase contemplated hereunder and are excluded from the Purchased Assets, and shall remain the property of Seller or its Affiliates after the Closing:
(a) other than the Transferred IP all cash and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property cash equivalents of Seller and any of its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) all Accounts Receivable;
(ic) any attorney-client, work product or similar privilege all Contracts other than the Transferred Contracts;
(d) all Governmental Authorizations of Seller or any of its Affiliates or otherwise relating to or arising out of other than the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax AssetsGovernmental Authorizations;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real intellectual property of Seller or any of its Affiliates (including all rights, title and interest to other than the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Transferred Intellectual Property;
(nf) all insurance policies and rights thereunder of the following: (including, for the avoidance of doubt, A) any proceeds received with respect to any such policies (other than records to the extent related to any Excluded Asset or Retained Liability, (B) any original tax records to the extent related to Taxes that constitute Retained Taxes (provided, however, that such Tax records shall be provided to Purchaser upon Purchaser’s reasonable request), (C) any records of Seller or its Affiliates other than the Transferred Books and Records, (D) any attorney work product, attorney-client communications and other items protected by attorney-client or similar privilege and (E) any documents that were received from Third Parties in Section 2.1(m)));
(o) all insurance proceeds which connection with their proposed acquisition of the Purchased Assets or that were prepared by Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m))connection therewith;
(pg) all accounts receivable, notes receivable, rebates receivable rights and other miscellaneous receivables claims of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to any Excluded Asset or any Retained Liability, including any such items arising out under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of the operation Seller and its Affiliates in respect of the Program Business prior to the Closingany Excluded Asset or any Retained Liability;
(qh) all Manufacturing Registrationsany refund or credit of Taxes to the extent attributable to any Retained Taxes;
(ri) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) rights of Seller or any of and its Affiliates under this Agreement and all related license, maintenance the other agreements and service Contracts instruments executed and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets)delivered in connection with this Agreement;
(sj) all Actions available to land, buildings, improvements and fixtures thereon owned or being pursued leased by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this AgreementAffiliates; and
(uk) for the avoidance of doubtall tangible personal property and other fixed assets and interests therein, including all other assetsequipment, properties furnishings, furniture and rights of fixtures, owned or leased by Seller or any of its Affiliates, of whatever kind including the tangible personal property and natureother fixed assets and interests therein, realand any warranty rights applicable to such tangible personal property, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood fixed assets and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)equipment.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) or Section 2.01(b) to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closing, Seller and its Affiliates Buyer shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchasernot purchase, and the Transferred Purchased Assets shall not include include, any of the following assets, rights and properties and rights of Parent or its Affiliates (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(ai) any Cash;
(ii) any accounts receivable;
(iii) any bank accounts or bank account records;
(iv) any Tax Returns not exclusively related to the Purchased Assets and the Business and any refunds or credits for Taxes attributable to a Pre-Closing Tax Period;
(v) except as otherwise expressly set forth in this Agreement or the Ancillary Agreements, including Section 2.01(a), all Tangible Property that is not Transferred Personal Property;
(vi) any assets, rights and properties that are not primarily relating to or primarily used in the Business, except as otherwise expressly set forth in this Agreement or any Ancillary Agreement;
(vii) all rights of Parent and its Affiliates in real property, other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Leased Real Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(bviii) (iA) all Books, Records and Files related to corporate organization of Parent and its Subsidiaries, including minute books and (B) the portion of the Books, Records and Files that do not relate to the Business;
(ix) subject to Section 5.04 and any license granted in accordance therewith, the Seller Licensed Marks;
(x) any attorney-client, work product or similar privilege Parent Plans;
(xi) the Parent Retained Intellectual Property;
(xii) (A) all rights of Seller or any of Parent and its Affiliates arising under this Agreement or otherwise relating to or arising out from the consummation of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreementhereby, (B) Contracts to which Parent or its Subsidiaries are a party that are (w) the portion of Retained Shared Contracts not relating to the Business, (x) any Enterprise-Wide Contracts; or (y) unrelated to the Business, or (C) those Contracts listed on Section 2.01(c)(xii) of the Ancillary Agreements or any Action described by Section 2.2(sSeller Disclosure Schedule (collectively, such Contracts in (A), (B) and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documentsC), the “Privileged Seller DocumentsRetained Contracts”);
(cxiii) all Excluded Contracts;
(d) all Excluded Tax IT Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and RecordsIT Assets;
(hxiv) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred EmployeesPermits, other than the Transferred Business Employee RecordsPermits;
(ixv) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plansany Affiliate Arrangements;
(jxvi) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilitiesexcept as otherwise expressly set forth in Section 2.01(a)(xii) and all Contracts related to the ownershipSection 5.18, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreementthereunder; and
(uxvii) for any other assets listed on Section 2.01(c)(xvii) of the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Disclosure Schedule.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in contained herein, including Section 2.1 1.1 above, each of this Agreementthe Prospect Medical Parties, from and after the Closingas applicable, Seller and its Affiliates shall retain all of their respective rightsits right, titles title and interests interest in and to and shall have no obligation to (and shall not be deemed to) sell, and there shall be excluded from the saleassign, convey, transfer, conveyancemortgage, assignment pledge, hypothecate or otherwise deliver to Buyers and/or Lender, as applicable, any or all of its assets and delivery to Purchaser, properties other than the Acquired Assets and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) Financed Asset (collectively, the “"Excluded Assets”):"), which Excluded Assets shall include, without limitation, the following:
(a) All cash, funds, accounts receivables, securities and investments of any of the Prospect Medical Parties;
(b) Loan receivables related to obligations of an Affiliate of any of the Prospect Medical Parties;
(c) Any casualty, liability or other insurance policies of any of the Prospect Medical Parties with respect to the Acquired Assets and/or the Financed Asset (subject to the assignment to any of the applicable MPT Parties of the proceeds of such policies in the event of a casualty);
(d) All personal property of any kind or nature, inventories, supplies, books and records, including without limitation, all medical equipment and equipment which is not a Fixture including all other personal property, other than the Transferred IP and the rights provided limited personal property described in this Agreement and the Ancillary AgreementsSection 1.1 above;
(e) All Permits, any Healthcare Licenses, Intellectual Property, Seller Marks and contracts or agreements (including but not limited to the Material Contracts, healthcare compliance agreements and any social media handles owned by Seller or its Affiliates that consist personal property leases);
(f) All leases, subleases, commitment letters, letters of Seller Marks) intent and other intellectual rental agreements, whether written or oral, in effect (either on the date of this Agreement or on the Closing Date), if any, that grant or will grant a possessory interest in and to any space in the Real Property or that otherwise assign or convey rights with regard to the Real Property or the Improvements;
(g) All leases of real property where any of Seller and its Affiliatesthe Prospect Medical Subsidiaries is the tenant, including all Intellectual Propertyany ground leases;
(h) All Licenses relating to the operation of the Facilities, Seller Marks including, without limitation, the Healthcare Licenses;
(i) All claims related to any Government Program contract or other intellectual Payor Contract reimbursement dispute;
(j) Any refunds or credits, claims for refunds or credits, or rights to receive refunds or credits from any Governmental Body; and
(k) All real property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney1-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)E attached hereto.
Appears in 1 contract
Sources: Real Property Asset Purchase Agreement (MPT Operating Partnership, L.P.)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred The Purchased Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) assets of Seller (collectively, the “Excluded Assets”):), which Seller shall specifically retain:
(a) other than the Transferred IP Seller’s corporate minute book, stock records, warrant records, stock option grant records and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementcorporate seal;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)all cash on hand;
(c) all Excluded Contractsof Seller's rights relating to any insurance policy or insurance contract (except as and to the extent provided in Section 1.2(ii) hereof) maintained by Seller to the extent not accepted by and assigned to Buyer;
(d) all Excluded Tax Assetsthe Lease between Seller and Acaso Investments, LLC regarding the facility (“Building”) located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in Camarillo, California (the “Building Lease”);
(e) all security depositsleasehold improvements, ▇▇▇▇▇▇▇ depositsselected office and conference room furniture, bidfixtures and equipment, leasemanufacturing equipment (including, utility without limitation the overhead crane and other depositsoverhead fans), office supplies, laptop and desk top computers and servers, and all other forms telephone and telecommunications equipment and systems located at the Building used by the Chief Executive Officer, Chief Financial Officer and controller of deposit placed by Seller or any Kreido but excluding the AutoCad computer, printer, engineering data and AutoCad software which shall be part of its Affiliates for the performance of a Transferred Contract or otherwisePurchased Assets;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliatesfeedstock inventory;
(g) all Books and Records (including any Tax Return receivables of Seller or any the Seller, as of its Affiliates), other than the Transferred Books and RecordsClosing Date;
(h) all employee books of account, records (including, without limitation, financial records, employment records, and personnel records of Seller SEC filing records), files, telephone numbers, facsimile numbers, internet addresses, web pages, e-mail accounts, any similar data and intellectual property, except to the extent directly associated with or any of its Affiliates relating to employees of Seller or any of its Affiliates or included in the Transferred Employees, other than the Transferred Business Employee RecordsPurchased Assets;
(i) prepaid expenses and security deposits, except to the sponsorship of, and all assets extent directly associated with or contracts maintained pursuant to or included in connection with, all Seller Benefit Plans;the Purchased Assets; and
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest in and to real property of Seller or any of its Affiliates claims made by Kreido in the matter known as United States Securities and Exchange Commission v. ▇▇▇▇▇ ▇▇▇▇▇, et. al. 07 Civ 1439 (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded AssetsLAP).
Appears in 1 contract
Sources: Asset Purchase Agreement (Four Rivers Bioenergy Inc.)
Excluded Assets. Notwithstanding For the avoidance of doubt, and notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after to the Closingcontrary, Seller and its Affiliates shall retain all of their respective rights, titles Buyer expressly acknowledge and interests in and to, and there shall be excluded from agree that the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include include, and neither Seller nor any Selling Subsidiary is selling, transferring, assigning, conveying or delivering to Buyer, and Buyer shall not purchase, acquire or accept from Seller or any Selling Subsidiary, any of the following assetsrights, properties or assets set forth or described in paragraphs (a) through (n) below (the rights, properties and rights (tangible or intangible and wherever located) (collectively, assets expressly excluded by this Section 2.2 being referred to herein as the “Excluded Assets”):
(a) other than all Intellectual Property that is not Purchased Intellectual Property or licensed to the Transferred IP and Buyer under the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its AffiliatesProperty License Agreement, including all the Intellectual Property, Seller Marks or other intellectual property Property set forth on Schedule 2.2(a) to this Agreement);
(b) (i) any attorney-clientcash, work product or similar privilege cash equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards, corporate calling cards of Seller or any Affiliate of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, including any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)lease deposits;
(c) all the Excluded Contracts;
(d) all Excluded Tax Assetsany rights in any real property other than the Assumed Leases;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwiseExcluded Equipment;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its AffiliatesExcluded Records;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and RecordsGovernmental Permits;
(h) all employee and personnel records any information management system of Seller or any Affiliate of its Affiliates relating to employees Seller, and all Software residing thereon, that is not exclusively related to, or exclusively used or exclusively held for use in, the operation or conduct of Seller the Business or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordsnot otherwise listed as Purchased Equipment;
(i) any claim, right or interest of Seller or any Affiliate of Seller in or to any refund, rebate, abatement or other recovery for Taxes, together with any interest due thereon or penalty rebate arising therefrom, the sponsorship ofbasis of which arises or accrues in any Pre-Closing Tax Period;
(j) any insurance policies, binders and all assets or contracts maintained pursuant to or claims and rights thereunder and the proceeds thereof;
(k) except as specifically provided in connection withSection 5.6, all Seller of the assets of the Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all any rights, title and interest to real property claims, defenses or causes of action of Seller or any Affiliate of its Affiliates (including all rights, title and interest Seller against Third Parties relating to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real propertyspecific causes of action set forth on Schedule 2.2(l);
(m) all Swiss Manufacturing Facilities Tangible Personal Property;call centers, and all external telephone numbers of any Business Employee that is not a Transferred Employee; and
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller securities or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates equity interests in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Person.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred The Business Assets shall not include any assets other than the assets, properties and rights contemplated by Section 2.01(a), including the following assets, properties and rights rights, whether owned by Sellers or any of their respective Affiliates (tangible or intangible and wherever located) (such assets, collectively, the “Excluded Assets”):
(ai) all cash of the Business;
(ii) the Excluded Contracts;
(iii) all real property leases other than the Real Property Leases;
(iv) all inbound licenses of Intellectual Property other than Inbound Licenses;
(v) all Intellectual Property other than the Transferred IP and the all Actions and rights provided to ▇▇▇ at law or in this Agreement and the Ancillary Agreementsequity for any past or future infringement, misappropriation or other violation of any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates Property that consist of Seller Marks) and other intellectual property of Seller and its Affiliatesis not Transferred IP, including the right to receive all Intellectual Property, Seller Marks or proceeds and damages therefrom;
(vi) all Technology other intellectual property than Transferred Technology;
(vii) the products and services set forth on Schedule 2.2(aSection 2.01(b)(vii) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business Disclosure Letter, and any other products developed, distributed, marketed, provided, or offered as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any part of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Consumer Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business immediately prior to the Closing;
(qviii) all Manufacturing Registrationssettlement agreements, releases and similar Contracts other than the Transferred Settlement Agreements (including all settlement agreements, releases and similar Contracts solely involving Former Business Employees);
(rix) all information technology systemsany Transferred Settlement Agreement solely to the extent that rights and benefits under such Transferred Settlement Agreement would automatically apply by the terms of such Transferred Settlement Agreement to the Companies without being contributed, hardware conveyed, assigned, transferred or delivered to the Companies;
(including all desktops, smartphones, tablets, laptops, printers, fax/scan machinesx) and software (whether in source code or object codethe tangible assets set forth on Section 2.01(b)(x) of Seller the Disclosure Letter (“Excluded Tangible Assets”);
(xi) subject to the rights granted to the Companies under the Ancillary Agreements, all data, including Personal Data, owned or licensed by Sellers, the Companies or any of their respective Subsidiaries that is (A) not exclusively used in, and that is not exclusively collected or otherwise Processed exclusively by or for, the Business or (B) licensed or proposed to be licensed to any of member of the Company Group under any Ancillary Agreement;
(xii) subject to the rights granted to the Companies under the Ancillary Agreements, all Software owned or licensed by Sellers, the Companies or any of its Affiliates and all related license, maintenance and service Contracts and related documentationrespective Subsidiaries that is (A) not exclusively used in, and that is not exclusively collected or otherwise processed exclusively by or for, the Business or (B) licensed or proposed to be licensed to any of member of the Company Group under any Ancillary Agreement;
(xiii) the equity interests of the Excluded Subsidiaries;
(xiv) to the extent required or allowed by applicable Law, all personnel, employee compensation, medical and benefits and labor relations records relating to the Employees; provided, however, that copies (or, where required by applicable Law, originals) of any such records relating to any Business Employee will be delivered to the Companies at the Closing unless disclosure of such records would be prohibited by privacy or data protection-related technologyapplicable Law or if the written consent of the employee is otherwise required, datathen subject to such consent; provided, databasesfurther, database rightshowever, designsthat where Sellers have delivered originals of such records, processesthe Companies will deliver copies of such records to Sellers upon Sellers’ written request to the extent allowed by applicable Law;
(xv) sponsorship of, methods and other know-how (or any assets that are set aside in a funded trust relating to, any Employee Plan, other than Transferred the Employee Plans as described in Section 2.01(a)(viii) (such Employee Plans as are Excluded Assets, “Excluded Plans”);
(sxvi) any and all Actions available owned real property, together with the buildings, fixtures, parking facilities and other improvements now or hereafter to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) be situated thereon and all Contracts to the extent relating related to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liabilitysuch real properties;
(txvii) all assetsaccounts receivable to the extent they do not relate exclusively to the Business;
(xviii) the rights of Sellers under this Agreement and the Ancillary Agreements;
(xix) rights of Sellers under their respective organizational documents;
(xx) all (a) records prepared in connection with the sale of the Business and (b) financial and tax records relating to the Business that form a part of the general ledger of each Seller (provided that Sellers shall deliver copies of such records to the Purchaser at the Closing, properties other than Tax Returns and rights described on Schedule 2.2(trelated work papers of a Seller that include any information unrelated to the Business or any income Tax Return of a Seller), other than any Tax Return (that is not a Pass-Through Tax Return) of any member of the Company Group, the originals of which shall for the avoidance of doubt constitute Business Assets;
(xxi) Actions against third parties except to this the extent exclusively relating to the Business or exclusively relating to the Business Assets or Assumed Liabilities;
(xxii) any data licensed or proposed to be licensed to any member of the Company Group under any Ancillary Agreement;
(xxiii) all goodwill to the extent it does not relate exclusively to the Business;
(xxiv) Sellers’ and its Affiliates’ rights, title and interests in, to and under the Shared Contracts, other than the Business Portion; and
(uxxv) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, assets that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Business Assets).
Appears in 1 contract
Sources: Contribution and Equity Purchase Agreement (McAfee Corp.)
Excluded Assets. Notwithstanding anything to the contrary Except as set forth in Section 2.1 of this Agreement1.01(b), from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the salenot sell, transfer, conveyanceassign, assignment and delivery convey or deliver to Purchaserthe Buyer (or any designated advisory Subsidiary of the Buyer), and the Transferred Assets shall Buyer (nor any designated advisory Subsidiary of the Buyer) will not include the following assetspurchase or accept any rights, properties and rights or assets owned by the Seller or its Affiliates (tangible or intangible and wherever located) (collectively, collectively the “Excluded Assets”):
(a) other than ), and all such Excluded Assets shall be retained by the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all any:
(i) Intellectual Property other than the Assigned Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books cash and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards securities, receivables and bank accounts of any other assets owned by the Seller or any of its Affiliates;
(giii) personal property, real property and any rights under real or personal property leases;
(iv) rights, recoveries, refunds, counterclaims, rights to offset, choses in actions, rights under all Books warranties, representations and Records guarantees made by suppliers of products, materials or equipment or components thereof, other rights and claims (including whether known or unknown, matured or unmatured, contingent or accrued) against third parties, in each case relating to the Excluded Assets or Excluded Liabilities;
(v) rights under any Tax Return of Seller or any of its Affiliates), Contracts other than the Transferred Books and RecordsAssigned Contracts; 114399-0014/143865664.11
(vi) Permits;
(hvii) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(kviii) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller any prepaid income or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as Taxes of the Closing that relate Seller and any income or other Tax refunds to any events, circumstances which the Seller may be or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreementmay become entitled; and
(uix) for any rights to the avoidance of doubtSeller’s or its Affiliates’ Organizational Documents, all minute books, stock books, taxpayer identification numbers, Tax Returns and related work papers, Form ADVs and other assetscorporate records (other than Business Records), properties and rights of as well as any attorney-client privileged communications, information or documents belonging to the Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Transaction Agreement (Federated Investors Inc /Pa/)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreementforegoing, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include any of the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”"):
(a1) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreementscorporate seals, any Intellectual Propertycertificates of incorporation, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist minute books, stock books, tax returns, books of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks account or other intellectual property set forth on Schedule 2.2(a) records having to this Agreementdo with corporate organizations of Sellers;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii2) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates Sellers under this Agreement or any of the Ancillary AgreementsAgreement;
(k3) any rights under any written or oral contract, agreement, lease, plan, instrument, registration, license other permit or approval of any nature, or other document, commitment, arrangement, undertaking, practice or authorization (other than rights accruing solely to the Excluded Prepaid Expensesowner of the Facility) to the extent the transfer of such rights is prohibited by applicable law or requires the consent of a third party, which consent has not been obtained; provided, however, that Section 2.3 hereof shall apply to any such contract rights;
(l4) all rightsintercompany receivables or obligations owed by one or more Sellers to one or more other Sellers, title and interest to real property rights of any Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or against any other similar arrangement with respect to Seller under any real propertyagreements between two or more Sellers;
(m5) the rights to any claims of each and any Seller for any federal, state, local, or foreign tax refunds or prepayments of taxes; or
(6) all Swiss Manufacturing Facilities Tangible Personal Propertycash and cash equivalents, whether in transit, on hand or in bank accounts, money market accounts, brokerage accounts or wherever located;
(n7) the Facility, including all real property, improvements and fixtures constituting the Facility and all registrations, licenses, permits, approvals and authorizations related solely to the Facility;
(8) any and all claims asserted by any Seller in any litigation involving such Seller except to the extent such claim relates to an Asset or Assets acquired by PRG or to a liability assumed by PRG hereunder;
(9) all insurance policies of any Seller and all proceeds thereof and claims thereunder except that PRG shall be entitled to receive the proceeds of any claim to the extent related to Assets acquired by PRG which are included in the Closing Balance Sheet at values not reflecting the loss or damage giving rise to such claim;
(10) rights in and to any software licenses which are not assignable without consent and rights thereunder (includingin the related software; provided, however, that a minimum of four site licenses for the avoidance HITS software package will be assigned to PRG and included in the Assets acquired by PRG;
(11) any contract rights of doubt, any proceeds received Seller with respect to any which PRG has not assumed all of the liabilities and obligations of such policies Seller thereunder (other than liabilities and obligations arising out of a breach by any Seller prior to the extent provided in Section 2.1(m))Closing Date);
(o12) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate amounts owed to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));Seller by officers and employees of any Seller and set forth on Schedule 1.1.3.; and
(p13) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described set forth on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)1.1.3.
Appears in 1 contract
Sources: Acquisition Agreement (Ects a Scenic Technology Co Inc)
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include and Purchaser shall not acquire any interest in or any rights under, in or relating to, the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”"):
(a) other than the Transferred IP any cash, cash equivalents, short-term investments and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementbank accounts;
(b) all items of Excluded Intellectual Property;
(ic) any attorney-client, work product or similar privilege of intercompany receivables reflecting indebtedness from Seller or any of its Affiliates, on the one hand, to any other Affiliate of Seller, on the other hand;
(d) the capital stock, notes and other securities of, and all other interests of Seller or its Affiliates in, any Person, including all Affiliates of Seller, except as set forth in Section 1.1(f);
(e) any insurance policies of Seller or otherwise its Affiliates and all rights of Seller or its Affiliates of every nature and description under or arising out of such insurance policies;
(f) any rights to Tax refunds, credits or similar benefits, together with any interest due thereon or penalty rebate arising therefrom, relating to or arising out of the Program Vuforia Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), Purchased Assets and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject attributable to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded a Pre-Closing Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its AffiliatesPeriod;
(g) all Books and Records any claims (including claims for infringement of any Tax Return Transferred Intellectual Property rights that occurred prior to the Closing Date) and causes of action of Seller or any its Affiliates against other Persons (regardless of whether such claims or causes of action have been asserted by Seller or its Affiliates) and any rights of indemnity, warranty rights, rights of contribution, rights to refunds, rights of reimbursement and other rights of recovery possessed by Seller or its Affiliates (regardless of whether such rights are currently exercisable), other than the Transferred Books and Records;
(h) all employee and personnel records rights of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of and the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(ui) for the avoidance of doubt, all other assets, properties rights and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, assets that are not specifically addressed by referred to in Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)1.1.
Appears in 1 contract
Sources: Asset Purchase Agreement (PTC Inc.)
Excluded Assets. Notwithstanding anything The following are not included in the Acquired Assets and are not being sold to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) Purchaser (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) ): (i) any attorney-clientcash, work product or similar privilege of Seller or (ii) cash equivalents, (iii) income tax receivables, (iv) deferred tax assets, (v) employee advances, (vi) Contracts and leases that are not any of its Affiliates or otherwise relating to or arising out Assigned Contracts, Customer TOS & PII Arrangements and Vehicle Rental Agreements, (vii) the Purchase Price and all rights of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by Seller under this Agreement, (viii) any rights, claims or causes of action under Chapter 5 of the Ancillary Agreements or any Action described by Section 2.2(s)Bankruptcy Code, (ix) all personnel records and other books, records, and files that the Seller is required by law, if any, to retain in their possession, (iix) the portions of any documents claim, right or interest of Seller in or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause refund, rebate, abatement or other recovery for taxes, together with any interest due thereon or penalty rebate arising therefrom, (ixi) applicable federal, state, and local taxes, (such documents, the “Privileged Seller Documents”);
(cxii) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility Insurance Programs and other deposits, and all other forms of deposit placed proceeds thereof relating to a liability covered by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), such Insurance Program other than Automobile Insurance Programs and the Transferred Books and Records;
proceeds thereof, (hxiii) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or computers owned by Seller’s employees, (xiv) any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest interests in and to real property of its joint venture with AmeriDrive Holdings, Inc. including its membership interests in HyreDrive, LLC, (xv) any fees, charges and other amounts paid or due to Seller or under any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, Vehicle Rental Agreements for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as portion of the Closing that relate to any events, circumstances or occurrences Rental Period (as defined in the applicable Vehicle Rental Agreements) occurring prior to the Closing Date, (other than xvi) all rights with respect to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable “Restricted Cash – Collateral Pledge” listed on the Seller’s balance sheet and other miscellaneous receivables of Seller or any of its Affiliates (i) relating generally to the extent that they are not related to relationships with AmeriDrive and Cogent Bank including the Program Business or proceeds and products thereof, (iixvii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business any other asset designated by Purchaser prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods (xviii) copies of any books and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent records relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).foregoing. 38760-00003/4781767.1
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇e▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there There shall be excluded from the saleAcquired Assets to be sold, transferassigned, conveyancetransferred, assignment conveyed and delivery delivered to Purchaserthe Buyer or its designee hereunder and, and to the Transferred Assets extent in existence on the Closing Date, there shall not include be retained by the following Sellers, all assets, properties and rights (tangible or intangible and wherever located) other than the Acquired Assets (collectively, the “Excluded Assets”):), including, without limitation:
(a) other than All rights of the Transferred IP and the rights provided in Sellers under this Agreement and the Ancillary Agreements, or any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementagreement entered into pursuant hereto;
(b) (i) any attorney-client, work product or similar privilege Any leased assets included within the definition of Seller or any of its Affiliates or otherwise relating Acquired Assets if the Buyer does not assume the Seller’s lease obligations with respect to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)assets;
(c) Any cash or cash equivalents and all Excluded Contractsbank accounts of the Sellers and their Subsidiaries;
(d) all Excluded Tax AssetsAny capital stock, securities or other interests held by any Seller in any Subsidiary or any other Person;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms Any assets of deposit placed by any Seller or any of its Affiliates for the performance of a Transferred Contract or otherwisePlan;
(f) all cashAll inventory, cash equivalentsother than the Fulfillment Center Inventory, credit cards and bank accounts of Seller or any of its Affiliatesincluding inventory in the Saks & Company store locations;
(g) all Books and Records All rights of the Sellers under any real property leases (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and RecordsAcquired Leases);
(h) all employee All rights of the Sellers in, under, and personnel records of Seller or with respect to the insurance policies, contracts and coverages obtained by any of its Affiliates relating to employees of Seller the Sellers or listing any of its Affiliates them as an insured party, a beneficiary or the Transferred Employees, other than the Transferred Business Employee Recordsloss payee;
(i) All rights of any of the sponsorship ofSellers under any Contractual Obligation (other than Licenses, Acquired Leases, Acquired Permits, Acquired Contracts, and all assets or contracts maintained confidentiality agreements acquired by the Buyer pursuant to or in connection with, all Seller Benefit PlansSection 2.1(f) hereof);
(j) all rights or claims All corporate seals, minute books, charter documents, corporate stock record books, registers of other securities, copies of original tax and financial records (the originals of which accrue or will accrue be delivered to Seller or any of its Affiliates under this Agreement or any the Buyer as part of the Ancillary AgreementsAcquired Assets), and such other books and records as pertain only to the organization, existence, share capitalization or debt financing of the Sellers;
(k) the Excluded Prepaid Expenses;All losses, loss carryforwards and rights to receive refunds, credits and loss carryforwards with respect to any and all Taxes which constitute Retained Liabilities; and
(l) all rights, title and interest All licensing royalties payable to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement Sellers under their contracts with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of Saks Incorporated before the Closing that relate to any events, circumstances Date or occurrences prior to after the Closing (other than Date in respect of merchandise sold by the Sellers to Saks Incorporated before the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Children S Books & Toys Inc)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closingfollowing assets of Seller, as well as any other assets not defined as Acquired Assets, shall be retained by Seller and its Affiliates shall retain are not being sold or assigned to Purchaser hereunder (all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, are referred to collectively as the “"Excluded Assets”):":
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned Any capital stock held by Seller or its Affiliates that consist any other affiliates of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementSeller;
(b) (iSubject to Section 2.1(j) hereof, cash and cash equivalents; provided that Purchaser and Seller agree that in the event either of them receive any attorney-client, work product cash or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out cash equivalents that properly constitute the property of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business other in connection accordance with the transactions contemplated by terms of this Agreement, any such cash or cash equivalents as shall be the property of the Ancillary Agreements or any Action described other party to this Agreement shall be held by Section 2.2(s)its recipient in trust for the other, and (ii) further shall be accounted for and paid over to the portions of any documents of Seller or any of other party promptly after its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)receipt;
(c) Any and all Excluded Contractscorporate records, including all of Seller's corporate seal(s), charter, by-laws, minute books and other corporate governance documents;
(d) all Any Contracts and/or Purchase Orders that do not constitute Assumed Contracts pursuant to Section 2.2(b) hereof, including, without limitation, (i) leases for the Excluded Tax AssetsLocations, (ii) leases for one or more Acquired Locations but which are not assigned by Seller and assumed by Purchaser due to failure to obtain approval in the Sale Order ("Rejected Leases"), (iii) contracts relating to the Excluded Locations or any Acquired Locations identified in subsection (ii) hereof and (iv) any other Contracts or Purchase Orders not purchased and assumed by Purchaser under any provision of this Agreement, including, without limitation, under Sections 2.2(b), 2.2(c), 3.3(b) and 8.6;
(e) all security depositsAny inventory (other than Halloween repack at the Warehouse and designated for the Acquired Locations), ▇▇▇▇▇▇▇ depositsfixtures, bid, lease, utility and equipment or other deposits, and all other forms of deposit placed by Seller or assets located at any of its Affiliates the Excluded Locations or as otherwise provided for in the performance of a Transferred Contract or otherwiseAgency Agreement;
(f) all cash, cash equivalents, credit cards and bank accounts Any refunds or claims for refunds of Seller income or any of its Affiliatescorporate taxes;
(g) all Books Any life insurance policies and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Recordsproceeds thereof owned by Seller;
(h) all employee and personnel records of Any governmental rebates or refunds due or which may become due to Seller pursuant to any federal or any of its Affiliates relating to employees of Seller state sales, customs or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordsexcise tax laws;
(i) All Claims and causes of action (A) arising under Sections 544, 548, 549, 550 and 553 of the sponsorship of, Bankruptcy Code (the "Avoidance Actions") and all assets (B) arising under or contracts maintained pursuant related to or in connection with, all Seller Benefit Plansany of the Excluded Assets;
(j) all rights or claims which accrue or will accrue to Such other items mutually agreed upon by Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;and Purchaser; and
(k) the Such items not otherwise provided for in this Agreement designated by Purchaser as Excluded Prepaid Expenses;
Assets prior to or within sixty (l60) all rightsdays after Closing, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest provided that there shall be no adjustment to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received Purchase Price with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)exclusion.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to It is expressly understood and agreed that the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Acquired Assets shall not include Seller’s right, title or interest in or to any of the following assets(each, properties and rights (tangible or intangible and wherever located) (collectively, the an “Excluded AssetsAsset”):
(ai) any assets, properties or rights set forth on Schedule 1.1(b)(i) attached hereto;
(ii) any equipment, machinery, vehicles, tools or other tangible personal property of Seller other than the Acquired Equipment;
(iii) other than the Transferred IP Product INDs and the rights provided in this Agreement and the Ancillary AgreementsProduct NDAs, any Intellectual Propertylicenses, Seller Marks (and permits or franchises issued by any social media handles owned by Seller federal, state, municipal or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementforeign authority;
(biv) other than the Acquired Equipment, any management information systems, including hardware and software;
(iv) any attorney-clientshares of capital stock of, work product or other equity interests in, any entity;
(vi) the corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books and other documents relating to the organization and existence of Seller as a corporation;
(vii) any cash, cash equivalents or similar privilege type investments, bank accounts, certificates of Seller deposit, Treasury bills or any of its Affiliates or otherwise relating to or arising out of other marketable securities;
(viii) all Contracts other than the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and Assigned Contracts (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller DocumentsExcluded Contracts”);
(cix) all Excluded Contractsany real property or leasehold interest in real property;
(dx) any patent or patent application other than to the extent included in the Transferred IP, including all Excluded Tax Assetsrights to ▇▇▇ for past infringement thereof;
(exi) any trademark registration or trademark registration application (together with the goodwill associated therewith) other than to the extent included in the Transferred IP, including all security deposits, ▇▇▇▇rights to ▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwisepast infringement thereof;
(fxii) all cash, cash equivalents, credit cards and bank accounts any insurance policies of Seller or any of its AffiliatesSeller;
(gxiii) all Books and Records (including any Tax Return of Seller personnel or any of its Affiliates), other than the Transferred Books and Recordsemployment-related records;
(hxiv) all employee and personnel records any rights of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreementsother Transaction Document;
(kxv) any prepayments, deposits, or refunds of Taxes of Seller in connection with the Excluded Prepaid ExpensesBusiness or the Acquired Assets that are attributable solely to Taxes paid during a Pre-Closing Tax Period;
(lxvi) all rights, title Employee Benefit Plans and interest to real property of Seller any trusts or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real propertyassets attributable thereto;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(pxvii) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(uxviii) for the avoidance any actions, claims, causes of doubtaction, all other assets, properties and rights of Seller recovery, choses in action or rights of setoff of any of its Affiliateskind arising before, of whatever kind and nature, real, personal on or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for after the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior Closing Date relating to the Burgundy Closing shall constitute items referred to above in this Section 1.1(b) or to any Excluded Assets)Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kala Pharmaceuticals, Inc.)
Excluded Assets. Notwithstanding anything any other provision of this Agreement to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closingfollowing assets (the “Excluded Assets”) shall not be transferred, Seller and its Affiliates shall retain all of their respective rightsconveyed, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery sold or assigned to Purchaser, and the Transferred Purchased Assets shall not include any of the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”)::
(a) other than the Transferred IP a Seller’s corporate seals, stock record books, minute books and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementorganizational documents;
(b) any Contract (other than an Assumed Contract) and deposits made in respect of professional fee retainers but solely to the extent that such deposit is used to satisfy allowed professional or advisory fees or expenses of professionals or advisors retained under Section 327 or Section 363 of the Bankruptcy Code, including allowed fees or expenses of PPP or ▇▇▇▇ ▇▇▇▇▇▇;
(c) the D&O Policy and any defense costs and expenses payable under the D&O Policy to Employees, directors or officers of any Seller;
(d) all rights of Sellers arising under this Agreement, and under any other agreement between Sellers and Purchaser entered into in connection with this Agreement or the Transactions;
(e) all amounts owed to any Seller by any other Seller;
(f) any shares of stock or other equity interests in any Seller or any subsidiary of any Seller and any Contracts entered into in connection with the sale or ownership of such shares of stock or other equity interests to the extent not set forth on Section 2.1(a);
(g) all assets listed on Schedule 2.2(g) by Purchaser in its sole discretion as of two (2) Business Days before the Closing Date;
(h) all bank accounts, deposit accounts, securities accounts, brokerage accounts and other accounts holding any cash, cash equivalents or securities belonging to Sellers set forth on Schedule 2.2(h);
(i) all of Sellers’ cash and cash equivalents on hand (including all undeposited checks) and in banks or other financial institutions in an amount equal to the Budgeted Reserve;
(j) all Employee Benefit Plans and any assets thereof or relating thereto;
(k) (i) all attorney-client, work client privilege and attorney work-product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out protection of the Program Sellers or associated with the Business as a result of legal counsel representing Seller, any of its Affiliates the Sellers or the Program Business in connection with to the extent relating to the structuring, preparation and negotiation of the transactions contemplated by this Agreement, Agreement (except for any attorney- client privilege and attorney work-product protection relating to Sales Taxes in furtherance of the Ancillary Agreements or any Action described by Purchaser’s obligations set forth in Section 2.2(s8.5), and ; (ii) the portions of any all documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such the attorney-client privilege and work-product protection described in clause subsection (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (includingexcluding, for the avoidance of doubt, any proceeds received with respect to any such policies (other than documents subject to the extent provided attorney-client privilege and work-product protection relating to Sales Taxes in furtherance of Purchaser’s obligations set forth in Section 2.1(m8.5)));
; and (oiii) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business documents maintained by Sellers to the extent relating to or arising out the structuring, preparation and negotiation of the operation of the Program Business prior to the Closing;transactions
(ql) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described Accounts Receivable listed on Schedule 2.2(t2.2(l) to this Agreement(the “Excluded Accounts Receivable”), including the Subscriber Orders set forth thereon (“Excluded Subscriber Orders”); and
(um) for all good faith or other bid deposits submitted by a third party under the avoidance terms of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)bidding procedures.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Other than the Purchased Assets, no assets of Seller or its Subsidiaries shall be transferred to Purchaser in the Transactions. Notwithstanding anything to the contrary contained in Section 2.1 of 1.1 or any other provision in this Agreement, from and after the Closing, following assets of Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights Subsidiaries (tangible or intangible and wherever located) (collectively, collectively the “Excluded Assets”):
(a) other than are not part of the Transferred IP sale and purchase contemplated by this Agreement, are excluded from the rights provided in this Agreement Purchased Assets, and will remain the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including Subsidiaries after the Closing:
(a) all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementCash;
(b) (i) any attorney-clientSolely to the extent not transferrable after compliance by Seller with its obligations under Section 4.4(b), work product or similar privilege of all purchase orders for Seller or any of its Affiliates or otherwise relating to or arising out Products outstanding as of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Closing;
(c) all Excluded Contractsinventories of the Business (subject to the provisions of the Transition Services Agreement);
(d) all Excluded Tax AssetsAccounts Receivable;
(e) except as provided for in Section 1.1(a), any capital equipment;
(f) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility Electronic Design Automation and other depositsIntellectual Property licenses as well as any other Contracts other than the Assumed Contracts;
(g) all rights, defenses, claims, demands, actions, deposits or causes of action to the extent related to or arising from any Retained Liability or any Excluded Asset, and all rights, defenses, claims, demands, actions, deposits or causes of action arising prior to the Closing other forms than to the extent included in the Purchased Assets;
(h) all refunds or credits of deposit placed or against, or similar benefits attributable to, Excluded Taxes;
(1) Tax Returns and other books and records related to Taxes paid or payable by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
Subsidiaries (f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than Tax Returns and other books and records related to Taxes exclusively used or exclusively held for use in the Transferred Books Business) and Records;
(h2) all employee financials and personnel records financial information of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit PlansBusiness;
(j) all rights or claims which accrue or will accrue assets and Contracts relating to Seller or any of its Affiliates under this Agreement or any of Employee Plan, other than assets relating to the Ancillary AgreementsEmployee Plans identified on Schedule 1.3(d) that apply to Transferred Employees;
(k) the Excluded Prepaid Expensesall assets, employees and operations (including related corporate functions) set forth on Schedule 1.2(k);
(l) all rights, title Intellectual Property Rights and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to Intellectual Property other than the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;Storm IP; and
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies any rights of the Seller in Seller’s name, trademark and rights thereunder (includinglogo, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent except as expressly provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)5.9.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to Acquiror expressly understands and agrees that the contrary in Section 2.1 following assets and properties of this Agreement, from OPH and after the Closing, Seller Asset Sellers as the same shall exist on the Initial Closing Date (the “Excluded Assets”) shall be retained by OPH and its Affiliates shall retain all of their respective rights, titles and interests in and tothe Asset Sellers, and there shall be excluded from the saleTransferred Assets, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) notwithstanding any other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist provision of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;:
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), GE Name and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇ ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or together with any of its Affiliates for Contracts granting rights to use the performance of a Transferred Contract or otherwisesame;
(fii) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates[intentionally omitted];
(giii) all Books and Records policies of or agreements for insurance of the Business (including any Tax Return of Seller or any of its Affiliatesthe Transferred Assets and the Assumed Liabilities) and interests in insurance pools and programs related to the Business (including the Transferred Assets and the Assumed Liabilities), other than the Transferred Books Asset Sellers Reinsurance Agreements and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Asset Sellers Retrocession Agreements;
(k) the Excluded Prepaid Expenses;
(liv) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (Intellectual Property other than the Business Intellectual Property (with certain such Intellectual Property to be governed by the extent provided terms of the Intellectual Property Cross License Agreement as set forth in Section 2.1(m))the Intellectual Property Cross License Agreement);
(ov) all insurance proceeds which Seller Technology other than the Business Technology (with certain Intellectual Property rights arising from or any in respect of its Affiliates has a right such Technology to receive as be governed by the terms of the Closing that relate to any events, circumstances or occurrences prior to Intellectual Property Cross License Agreement as set forth in the Closing (other than to the extent provided in Section 2.1(m)Intellectual Property Cross License Agreement);
(pvi) all accounts receivable, notes receivable, rebates receivable the corporate minute books and other miscellaneous receivables stock records of Seller or OPH and the Asset Sellers and any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business books and records to the extent relating to any other Excluded Asset or arising out the Excluded Business;
(vii) all assets not used primarily in the conduct of the operation of the Program Business prior to the ClosingBusiness;
(qviii) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller rights that accrue to GE or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to Subsidiaries under the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this AgreementTransaction Agreements; and
(uix) for the avoidance assets and properties listed in Section 2.2(b)(ix) of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)GE Disclosure Letter.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the The following assets, properties and rights businesses of the Retained Entities (tangible the “Specified Excluded Assets”) and any other asset, property or intangible and wherever located) business of Sapphire and/or any of its Subsidiaries that is not Related to the Businesses (collectively, the “Excluded Assets”):) shall be excluded from the Transferred Assets:
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementreal property;
(b) (i) any attorney-clientSpecified Excluded Real Property Lease and any Contract related to the leasing or subleasing of real property and all rights thereunder other than the Transferred Real Property Leases and any subleases, work product licenses or similar privilege of Seller or any of its Affiliates or otherwise relating occupancy agreements pertaining to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying such Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Real Property Leases;
(c) all the Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security depositsShared Contracts and, ▇▇▇▇▇▇▇ depositsunless otherwise addressed in the definition of Transferred Assets or this Section 2.03, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder that are not Purchased Contracts (including, for the avoidance of doubt, any proceeds received with Contracts in respect of the Business Policies to any such policies which Sapphire or its Subsidiaries (other than to the extent provided Transferred Entities) are a party), subject to, in the case of Specified Brokerage Contracts, the provisions of Section 2.1(m)5.20(c));
(od) all insurance proceeds which Seller cash, cash equivalents and marketable securities on hand or in banks, including the Retained Fiduciary Accounts (except for (i) Required Cash and (ii) any of its Affiliates has cash held in a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m)Transferred Fiduciary Account);
(pe) all accounts receivablebank accounts, notes receivable, rebates receivable including the Retained Fiduciary Accounts (and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreedexcluding, for the avoidance of doubt, the Transferred Fiduciary Accounts);
(f) all Intellectual Property Rights, other than (i) the Business Intellectual Property Rights, and (ii) any rights to third-party Intellectual Property Rights licensed pursuant to Purchased Contracts;
(g) to the extent used or held for use in the Retained Businesses as of the Principal Closing, all copies and tangible embodiments of any Business Intellectual Property Rights licensed for use by Sellers under the Intellectual Property License Agreement including any such copies or tangible embodiments that are comprised of Software, analytical and actuarial tools and models and other technology;
(h) all Permits (excluding, for the avoidance of doubt, Permits held by a Transferred Entity);
(i) all insurance policies issued to Sapphire and its Subsidiaries other than the Transferred Entities and, subject to Section 5.09, all rights, claims, credits or causes of action thereunder;
(j) all refunds and credits, claims for refunds or credits and rights to receive refunds or credits of Taxes with respect to Taxes arising out of, relating to or in respect of the Transferred Assets and the Businesses for any rightPre-Closing Tax Period;
(k) all Business Records other than the Transferred Business Records, titleincluding all minute books, corporate records (such as stock registers) and Organizational Documents;
(l) Business Data otherwise forming part of the Transferred Assets which exceeds the retention periods as are provided in the document retention policies and procedures of the Business and/or which does not relate to the Business Policyholders, including, but not limited to data of any Retained Entities or interest of Burgundy the Excluded Assets;
(m) all Seller Employee Plans, all Assumed Employee Plans (but only to the extent not related to the Transferred Employees) and any other plan, scheme, program, policy, practice, agreement, arrangement or contract which any Seller or any of their respective Affiliates sponsors or maintains or with respect to which any Seller or any of their respective Affiliates contributes, is a party or has any liability (other than any Assumed Employee Plan), including all Contracts, insurance policies or other funding arrangements, relating to or arising from, and assets of, such arrangements;
(n) all Specified Retained Renewal Rights and Specified Retained Renewal Goodwill;
(o) all assets sold, transferred or otherwise disposed of in compliance with the terms of the Transaction Documents from the date hereof until the Relevant Closing;
(p) all rights of any of the Retained Entities expressly set forth in the Transaction Documents;
(q) the Put Options Assets unless and until the applicable Put Option is exercised and the parties have duly executed and delivered the applicable Transfer Agreement (at which time the Put Option Assets shall be Transferred Assets);
(r) (i) Retained Fiduciary Accounts Receivables and (ii) any revenue that has not yet been received by Sapphire or its Affiliates in any assets, respect of each Specified Brokerage Contract for the period until such Specified Brokerage Contract (or replacement therefor) is assigned to Buyer in accordance with Section 5.20(c); and
(s) those assets and properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assetslisted on Schedule 2.03(s).
Appears in 1 contract
Sources: Security and Asset Purchase Agreement (Willis Towers Watson PLC)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates System Assets shall retain all of their respective rights, titles and interests in and tonot include, and there shall be are excepted, reserved and excluded from the saletransactions contemplated hereby, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than All corporate, financial, income and franchise Tax and legal records of Contributing Parties that relate primarily to Contributing Parties’ business generally (whether or not relating to the Transferred IP System Assets), and all books, records and files to the rights provided in this Agreement extent that the same relate to the Excluded Assets and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned copies of those records retained by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) Contributing Parties pursuant to this AgreementSection 2.1(i);
(b) All geological and geophysical data (iincluding all seismic data, including reprocessed data) any attorney-clientand all logs, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Sellerinterpretive data, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreementtechnical evaluations, any of the Ancillary Agreements or any Action described by Section 2.2(s)technical outputs, reserve estimates and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)economic estimates;
(c) all Excluded ContractsAll rights to any refund of Taxes in respect of any Taxes for which any Contributing Party is liable for payment or for which Anadarko is required to indemnify the Recipient Parties under Section 9.3;
(d) all Excluded Tax AssetsThose items listed in Schedule 2.2(d);
(e) all security depositsAll trade credits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables attributable to the System Assets with respect to any period of Seller time ending prior to the Effective Time;
(f) All right, title and interest of Contributing Parties in and to vehicles used in connection with the System Assets;
(g) All rights, titles, claims and interests of Contributing Parties or any Affiliate of its Affiliates a Contributing Party with respect to any period of time prior to the Effective Time (i) to or under any policy or agreement of insurance or any insurance proceeds, except to the extent that they are not related to the Program Business or Recipient Parties assume liability for a Loss for which a Contributing Party is insured, and (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code under any bond or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreementbond proceeds; and
(uh) for the avoidance Any patent, patent application, logo, service ▇▇▇▇, copyright, trade name or trademark of doubt, all other assets, properties and rights of Seller or associated with Contributing Parties or any Affiliate of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy a Contributing Party or any business of its Affiliates in a Contributing Party or of any assets, properties and rights, Affiliate of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)a Contributing Party.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreementcontained herein, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Station Assets shall not include the following assetsassets or any rights, properties title and rights interest therein (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP all cash and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist cash equivalents of Seller Marks) and other intellectual property of Seller and its AffiliatesSeller, including without limitation certificates of deposit, commercial paper, treasury bills, marketable securities, money market accounts and all Intellectual Property, Seller Marks such similar accounts or other intellectual property set forth on Schedule 2.2(a) to this Agreementinvestments;
(b) (i) any attorney-client, work product or similar privilege all tangible and intangible personal property of Seller retired or any disposed of its Affiliates or otherwise relating to or arising out between the date of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business this Agreement and Closing in connection accordance with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Article 4;
(c) all Excluded Contractsany contract, lease, or agreement other than the Real Property Lease and the Interference Agreement;
(d) Seller’s corporate names, any trade names not exclusive to the operation of the Station, charter documents, business records, and books and records relating to the organization, existence or ownership of Seller, duplicate copies of the records of the Station, and all Excluded Tax Assetsrecords not relating to the operation of the Station;
(e) all security depositscontracts of insurance, ▇▇▇▇▇▇▇ deposits, bid, lease, utility all coverages and other deposits, proceeds thereunder and all other forms of deposit placed by Seller or rights in connection therewith, including without limitation rights arising from any of its Affiliates for refunds due with respect to insurance premium payments to the performance of a Transferred Contract or otherwiseextent related to such insurance policies;
(f) any employee option award agreements (with respect to membership interests in an affiliate of Seller), all cashpension, cash equivalentsprofit sharing plans and trusts and the assets thereof and any other employee benefit plan or arrangement and the assets thereof, credit cards and bank accounts of Seller or any of its Affiliatesif any, maintained by Seller;
(g) all Books the Station’s accounts receivable and Records any other rights to payment of cash consideration for goods sold or services provided prior to the Effective Time (including defined below) or otherwise arising during or attributable to any Tax Return of Seller or any of its Affiliatesperiod prior to the Effective Time (the “A/R”), other than the Transferred Books and Records;
(h) all employee any non-transferable shrink-wrapped computer software and personnel records any other non-transferable computer licenses that are not material to the operation of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsStation;
(i) all rights and claims of Seller, whether mature, contingent or otherwise, against third parties with respect to the sponsorship ofStation and the Station Assets, and all assets to the extent arising during or contracts maintained pursuant attributable to or in connection with, all Seller Benefit Plansany period prior to the Effective Time;
(j) all rights or claims which accrue or will accrue to Seller or computers and other similar assets and any other operating systems and related assets that are used in the operation of its Affiliates under this Agreement or multiple stations, except for any of such items that are specifically set forth as included in the Ancillary AgreementsStation Assets on the Schedules hereto;
(k) all assets used or held for use in the Excluded Prepaid Expenses;operation of any other station owned or operated by Seller or an affiliate of Seller, except for any such items that are specifically set forth as included in the Station Assets on the Schedules hereto; and
(l) all rights, title and interest to real property of Seller or any of its Affiliates the items (including all rights, title and interest to the Swiss Manufacturing Facilitiesif any) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described listed on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)1.2.
Appears in 1 contract
Sources: Asset Purchase Agreement (Madison Technologies Inc.)
Excluded Assets. Notwithstanding anything to Buyer expressly understands and agrees that the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include include, and each Seller shall retain, any and all right title and interest in, to and under the following assetsproperties, properties assets and rights (of every kind and description, wherever located, whether real, personal, mixed, tangible or intangible and wherever located) intangible, of such Seller other than the Purchased Assets (collectively, the “Excluded Assets”):). Specifically, and without in any way limiting the generality of the first sentence of this Section 2.1(b), the Purchased Assets shall not include, and Buyer shall not acquire:
(ai) any rights in or to any Seller’s franchise to be a limited liability company and its company seal, minute books, equity ledger and other records relating to its existence and capitalization;
(ii) any equity interest in any Seller or in any other Person in which any Seller owns any equity interest (other than Rubicon International);
(iii) the Transferred IP consideration to be delivered by Buyer to any Seller pursuant to this Agreement and the all other rights provided in of any Seller under this Agreement and the Ancillary AgreementsSeller Documents;
(iv) any Cash and Cash Equivalents of any Seller;
(v) any intercompany receivables of any Seller payable by an Affiliate of such Seller, other than amounts due and owing for products sold and services provided by the Technology Business;
(vi) any rights to refunds or credits with respect to any Taxes paid or incurred by any Seller (and rights to refunds for Taxes relating to the Technology Business, Purchased Assets, or the Transferring Employees for any Pre-Closing Tax Period (or portion thereof)) to the extent such Taxes were paid by Seller, together with any related interest received or due from the relevant taxing authority, any prepaid Taxes or other rights to Taxes paid by or of any Seller;
(vii) any and all rights of any Seller in or to (A) any Intellectual Property, Seller Marks Software and Information Systems (and any social media handles 1) owned by Seller a third party to the extent not related to the Technology Business or its Affiliates that consist of Seller Marks(2) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) owned by any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of Subsidiaries that are not Used in the Program Technology Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (includingbut, for the avoidance of doubt, excluding any proceeds received with respect to any such policies Business Intellectual Property), (other than to B) the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentationMarks, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (iC) any of other Intellectual Property or Software indicated as an Excluded Asset on the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or Disclosure Schedules (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreedbut, for the avoidance of doubt, that excluding the Business Intellectual Property set forth on Schedule 4.13(a) and Schedule 4.13(b));
(viii) any rightprepaid items, titleclaims for contribution, indemnity rights and similar claims and causes of action and other intangible rights to the extent any of the foregoing relate exclusively or interest primarily to any Excluded Asset or to any Excluded Liability, and all privileges related thereto;
(ix) subject to Buyer’s rights under Section 8.11, any Seller’s rights in, to and under the Insurance Policies;
(x) any books, records, files or other embodiments of Burgundy information not otherwise constituting Business Records;
(xi) any Seller’s rights, claims or causes of action against third parties primarily or exclusively relating to any Excluded Asset or any Excluded Liability;
(xii) each Employee Plan, including all assets with respect thereto and all related administrative services Contracts;
(xiii) each of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy assets set forth on Schedule 2.1(b)(xiii); and
(xiv) all Pre-Closing shall constitute Excluded Assets)Accounts Receivable.
Appears in 1 contract
Sources: Asset Purchase Agreement (Rubicon Technologies, Inc.)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the The following assets, properties and rights of the Seller are not being acquired by Buyer, are excluded from the Purchased Assets and shall remain the assets, properties and rights of the Seller after the Closing (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) all Contracts of the Seller, other than the Transferred IP Assigned Contracts and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementAssigned Leases;
(b) (i) the corporate seal and any attorney-clientminute books, work product or similar privilege stock books and other records relating to the corporate organization of the Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Affiliates;
(c) subject to Section 2.01(f), Section 2.01(l), Section 2.01(p) and Section 2.05(c), all Excluded Contractscash, cash equivalents, short-term investments, bank deposits, investment accounts, corporate credit cards and similar items of the Seller (other than, for the avoidance of doubt, Final Cash);
(d) all Excluded Tax Assetsmarketable securities;
(e) all security depositsinsurance policies of the Seller, ▇▇▇▇▇▇▇ depositsrights thereunder and proceeds therefrom, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller whether or any of its Affiliates for not related to the performance of a Transferred Contract or otherwiseBusiness;
(f) all cash, cash equivalents, credit cards personnel and bank accounts other records that the Seller is required by applicable Law to retain in its possession and any other information described in clauses (i) and (ii) of Seller or any of its AffiliatesSection 6.01(b);
(g) all Books and Records rights to any refunds (including whether by payment, offset, credit or otherwise) of Taxes for which the Seller is liable under Section 6.04 or that were paid or prepaid by the Seller with respect to any Tax Return period or which Taxes are the subject of indemnification by the Seller or any of its Affiliates), other than the Transferred Books and Recordsunder this Agreement;
(h) all employee any rights or claims of the Seller against or with respect to (i) Buyer with respect to any business conducted by and personnel records between Buyer and Seller prior to the Effective Time in the Ordinary Course of Business including any amount owed by Buyer to Seller or relating thereto, and (ii) any of its Seller’s Affiliates relating and any other benefit or amount owed by any such Affiliates to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsSeller;
(i) Benefit Plans and the sponsorship of, assets of Benefit Plans and all assets or contracts maintained pursuant to or rights of the Seller in connection with, all Seller with any Benefit Plans and assets of Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of and other agreements and documents entered into by the Ancillary AgreementsSeller in connection with the transactions herein;
(k) the Excluded Prepaid Expenses;any equity interests in Re-Gen Enterprises; and
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (iiassets listed on Schedule 2.02(l) that are related to used solely in the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Drilling Business.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement1.1, from and after the ClosingCompany shall not sell, Seller and its Affiliates shall retain all of their respective rightsconvey, titles and interests in and toassign, transfer or deliver to Buyer, and there Buyer shall be excluded not purchase or acquire from the sale, transfer, conveyance, assignment and delivery to Purchaser, Company (and the Transferred Purchased Assets shall not include include), the following assets, properties and rights (tangible or intangible and wherever located) assets of Company (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the Any rights provided in this Agreement and the Ancillary AgreementsCompany’s franchise to be a corporation, any Intellectual Propertyits charter, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) corporate seal, minute books, stock books and other intellectual property of Seller corporate records relating to its corporate existence and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementcapitalization;
(b) Any equity interest in Company;
(ic) any attorney-clientAny of Company’s assets that are consumed, work product sold or similar privilege disposed of Seller in the ordinary course of business consistent with past practice prior to the Closing Date;
(d) Any rights of Company under this Agreement or any of its Affiliates or otherwise relating related to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security depositsAny cash and cash equivalents of Company at Closing (except as otherwise contemplated by Section 4.3(c));
(f) Any intercompany receivables of Company;
(g) Any rights of Company in the real property located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ deposits, bid▇▇▇▇▇▇▇▇▇▇, leaseincluding rights under that certain Lease Agreement, utility dated July 1, 2004, between Parent and other depositsCompany, together with all improvements and all other forms of deposit placed by Seller fixtures on or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Recordsrelated to such real property;
(h) all employee Any refunds or credits with respect to any Taxes paid or incurred by Company, together with any related interest received or due from the relevant taxing authority, any prepaid Taxes of Company and personnel records any other rights to Taxes of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsCompany;
(i) Any rights of Company in or to the sponsorship ofuse of any name, tradename, trade ▇▇▇▇, service name or service ▇▇▇▇ incorporating the word “▇▇▇▇▇” or any derivation thereof and all assets any corporate symbols or contracts maintained pursuant logos related thereto, except to or the extent expressly otherwise set forth in connection with, all Seller Benefit PlansSection 5.4(b);
(j) all Any insurance policies, or rights under such policies, held by or claims which accrue or will accrue on behalf of Company, subject to Seller or any of its Affiliates Buyer’s rights under this Agreement or any of the Ancillary AgreementsSection 5.5(b) hereof;
(k) Any rights of Company under the Excluded Prepaid ExpensesChemed Agreement;
(l) all rightsAny prepaid items, title claims for contribution, indemnity rights and interest similar claims and causes of action and other intangible rights to real property of Seller or the extent any of its Affiliates (including all rights, title and interest the foregoing relate to the Swiss Manufacturing Facilities) other Excluded Assets described in this Section 1.2 or to the liabilities described in Section 1.4, and all Contracts privileges related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;thereto; and
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (includingAny books, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable records and other miscellaneous receivables of Seller or any of its Affiliates (i) documentation relating primarily to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets described in this Section 1.2 or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing liabilities described in Section 1.4 (provided that Buyer shall constitute Excluded Assetshave access to such books, records and other documentation as described in Section 5.3).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 2.2 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toCISI is not selling, and there shall be excluded from the saleBuyer is not purchasing, transferpursuant to this Agreement, conveyanceCISI’s right, assignment title and delivery interest in, to Purchaser, and the Transferred Assets shall not include under the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):), all of which shall be retained by CISI:
(a) all Cash, other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementUnswept Cash;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out all items set forth on Section 2.3 of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Concentra Disclosure Letter;
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller whether or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any not set forth on Section 2.3 of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubtConcentra Disclosure Letter, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties properties, rights, licenses, Permits, Contracts, real property, causes of action and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance businesses of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever every kind and naturedescription, wherever located, real, personal or mixed, tangible or intangible, to the extent owned by, leased by, granted to or otherwisein the possession of CISI, that is not primarily used (or held for use) in the CISI Business including, without limitation:
(i) Except as otherwise set forth herein or in the Software License Agreement, the Intellectual Property used but not primarily used (or held for use) in the CISI Business, the Concentra Name (including any and all uses of the Concentra Name), and the other items of Intellectual Property set forth in Section 2.3 of the Concentra Disclosure Letter;
(ii) the AIS Business;
(iii) the Shared Corporate Services;
(iv) the Oracle Financial Application; and
(v) except as otherwise provided in Section 6.15 of this Agreement, all rights of CISI under any Contract not included in the Assumed Contracts, including the Contracts set forth in Section 2.3 of the Concentra Disclosure Letter (the “Excluded Contracts”);
(vi) all claims, causes of action, choses in action, rights to insurance or indemnity, rights of recovery and rights of set-off of any kind against any Person to the extent arising out of or relating to any Excluded Liability;
(d) all of CISI’s bank accounts that are not specifically addressed by listed on Section 2.1(a2.2(m) through of the Concentra Disclosure Letter;
(oe) the certificate of incorporation and bylaws of CISI and the corporate minutes, corporate seals and stock books of CISI;
(it being further understood f) all Intercompany Receivables and agreedIntercompany Agreements;
(g) all Tax Returns, and all notes, worksheets, files or documents relating thereto, for any Consolidated Group or for any Pre-Closing Tax Period, provided that Buyer shall be entitled to receive copies of Tax Returns relating to the avoidance Acquired Companies (other than Tax Returns of doubta Consolidated Group);
(h) all claims for and rights to receive refunds, that rebates or similar payments of Taxes to the extent such Taxes were paid by or on behalf of CISI or were paid with respect to the Acquired Assets for any right, title, Taxable period (or interest of Burgundy portion thereof) ending on or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Date, and all Tax Returns and all notes, worksheets, files or documents relating thereto;
(i) the rights of CISI under this Agreement and each other Transaction Agreements; and
(j) Except as otherwise set forth herein or in the Software License Agreement, all Intellectual Property used in the provision of Shared Corporate Services.
Appears in 1 contract
Excluded Assets. Notwithstanding anything contained in this Agreement to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assetsrights, properties and rights (tangible or intangible and wherever located) assets (collectively, the “"Excluded Assets”):") will, to the extent not included in the calculation of Working Capital, not be included in the Acquired Assets:
(a) other than all cash, cash equivalents or marketable securities of the Transferred IP Seller and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementSelling Subs;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out all of the Program Business as a result of legal counsel representing Seller, any of its Affiliates Accounts Receivable that have been satisfied or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences discharged prior to the Closing (other than or have been written off or sent to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business collection prior to the Closing;
(c) all of the agreements, contracts and arrangements that (i) have terminated or expired in accordance with their terms prior to the Closing in the ordinary course or (ii) as of the Closing Date, have been rejected or are the subject of a motion to reject by the Seller or any Selling Sub in the Chapter 11 Case;
(d) any agreement, contract, lease or arrangement or portion thereof that is not part of the Assigned Contracts and Leases;
(e) any claims, rights or causes of action arising under Article 5 of the Bankruptcy Code;
(f) any claims, rights or causes of action of Seller or any Business Sub (unasserted, contingent, pending or otherwise) other than (except as set forth in Section 1.1(b)(v)) claims, rights or causes of actions relating to the Assumed Liabilities;
(g) any right of the Seller or any Selling Sub under this Agreement;
(h) any asset (including any rights to the GSX Contribution Impairment Fund) or capital stock of any direct or indirect subsidiary of Seller which owns and/or has operated the landfill in Pinewood, South Carolina, which subsidiaries are listed on Schedule 1.2(h);
(i) any Tangible Personal Property transferred or disposed of prior to the Closing in the ordinary course;
(j) the company seal, minute books, charter documents, stock or equity record books, Tax Returns and records relating to Taxes and such other books and records as pertain to the organization, existence or capitalization of the Seller and each Selling Sub as well as any other records or materials relating to the Seller or any Selling Sub generally and not involving or related to the Acquired Assets or the operations of the Business;
(k) all contracts of insurance, surety bonds, collateral bonds, letters of credit, cash trusts, cash deposits or the proceeds thereof, including, but not limited to, any of the foregoing for Financial Assurance requirements or performance bond requirements, whether or not required under applicable Environmental Laws;
(l) any right, property or asset that is listed or described on Schedule 1.2(l);
(m) the word and name "Safety-Kleen" and the Seller's monograms, logos, trademarks, trade names or any variations or combinations thereof including such word or name;
(n) any right the Seller or a Selling Sub has with respect to Tax refunds, claims for Tax refunds and Tax attributes other than any Tax attributes with respect to the Transferred Subs;
(o) any of the equity interests directly or indirectly owned by the Seller or any Selling Sub in any of their respective subsidiaries, other than the Seller's or any Selling Sub's equity interests in the Transferred Subs;
(p) any amounts owed the Business from the Branch Sales and Services Division ("BSSD") of Safety-Kleen Corp;
(q) all Manufacturing Registrationssurety and performance bonds, which surety and performance bonds are listed or described on Schedule 1.2(q), or the proceeds thereof;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related licensethe real property listed on Schedule 1.2(r) which has been transferred prior to the Closing or is subject to an agreement to be transferred after the Closing;
(i) that certain promissory note from ▇▇▇▇▇▇▇-▇▇▇▇ LLC dated June 15, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);2001; and
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) except as otherwise required herein with respect to the extent relating to or arising out of (i) Transferred Employees, any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Plan.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of or elsewhere in this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) assets of Bios (collectively, the “Excluded Assets”):) are excluded from the Purchased Assets, and are to be retained by Bios as of the Closing:
(a) other than all cash or cash equivalents of the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementBusiness;
(b) any bank or brokerage accounts of Bios and its subsidiaries;
(ic) original copies of all financial and accounting records, minute books, non-classified records, stock ledgers and Tax records of Bios and its subsidiaries, and any attorneyother materials that Bios or its subsidiaries are required by Law to retain;
(d) the shares of the capital stock of Bios and its subsidiaries;
(e) all certificates for insurance, binders for insurance policies and insurance, and claims and rights thereunder and proceeds thereof, to the extent not transferable or assignable ;
(f) all claims for refund of Taxes and other governmental charges of whatever nature arising out of Bios’ operation of the Business or ownership of the Purchased Assets prior to the Closing;
(g) all Governmental Authorizations and all pending applications therefore or renewals thereof, to the extent not transferable or assignable;
(h) all claims, rights, credits, causes of actions, defenses and rights of set-client, work product or similar privilege of Seller or any of its Affiliates or otherwise off against third parties relating to or arising out from the Excluded Liabilities, whether accruing before or after the Closing, and including all attorney work-product protections, attorney-client privileges and other legal protections and privileges to which Bios may be entitled in connection with or relating to the Excluded Assets or the Excluded Liabilities;
(i) personal effects and the personal automobile of the Program Business as a result Majority Shareholder;
(j) security deposits for all Leased Real Property; and
(k) all rights of legal counsel representing SellerBios under this Agreement and any other documents, any of its Affiliates instruments or the Program Business certificates executed in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Asset Acquisition Agreement (Mesa Laboratories Inc /Co)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closingcontained herein, Seller and its Affiliates shall retain all of their respective rightsnot sell, titles and interests in and toconvey, and there shall be excluded from the saleassign, transfer, conveyance, assignment and delivery transfer or deliver to Purchaser, and the Transferred Assets Purchaser shall not include purchase, acquire or accept, any assets other than the Purchased Assets, including any of the following assets, assets and properties and rights (tangible or intangible and wherever located) of Seller (collectively, the “Excluded Assets”):
(ai) any Working Capital;
(ii) any GE Name and ▇▇ ▇▇▇▇▇, together with any Contracts granting rights to use the same (certain of which will be licensed pursuant to the Transitional Trademark License Agreement (as defined in Section 5.08(d));
(iii) any of Seller’s right, title and interest in respect of real property, other than the Transferred IP Facility, including any improvements, fixtures or appurtenances to real property other than the Facility or rights in respect thereof;
(iv) Tax assets relating to, but not limited to, all refunds (or credits) of any Tax for which Seller is liable pursuant to Section 5.07;
(v) Seller’s plans and other employee benefit plans, programs, arrangements, agreements (including retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements) and policies sponsored or maintained by the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist Affiliates, and any trusts or other assets related thereto, except as provided in Article VI;
(vi) subject to Section 5.05, all policies of, or agreements for, insurance and interests in insurance pools and programs;
(vii) except as otherwise provided in Section 2.01(a)(v) or Section 2.01(a)(vii), all Software and data owned or licensed by Seller and used solely in the conduct of Seller Marksthe operation of the Business;
(viii) any Intellectual Property other than the Product Intellectual Property and the Purchased Registered Intellectual Property;
(ix) all causes of action (including counterclaims) and other intellectual property defenses (A) against third parties relating to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that may be asserted against Seller and its Affiliates, including all Intellectual Property, or for which indemnification may be sought by Purchaser Indemnified Parties pursuant to Article VII or that the Seller Marks or other intellectual property set forth on Schedule 2.2(a) to is otherwise responsible for under the terms of this Agreement;
(bA) (i) any attorney-client, work product all loans or similar privilege of advances by Seller or any of to its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), Affiliates; and (iiB) the portions of any documents of Seller all loans or any of its advances by Seller’s Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Seller;
(cxi) all Excluded Contractspersonnel and employment records for employees and former employees of the Seller or its Affiliates who are not Transferred Employees;
(dxii) (A) all corporate minute books (and other similar corporate records) and stock records of Seller, (B) any books and records relating to the Excluded Assets or (C) any books, records or other materials that Seller (x) is required by Law to retain (copies of which, to the extent permitted by Law, will be made available to Purchaser upon Purchaser’s reasonable request), (y) reasonably believes are necessary to enable it to prepare and/or file Tax AssetsReturns (copies of which will be made available to Purchaser upon Purchaser’s reasonable request) or (z) is prohibited by Law from delivering to Purchaser;
(exiii) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility the assets and other deposits, and all other forms properties listed in Section 2.01(b)(xiii) of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwiseDisclosure Schedules;
(fxiv) all cashany assets sold or otherwise disposed of in the ordinary course of business prior to the Closing Date; and
(xv) any other assets, cash equivalentsproperties, credit cards rights, Contracts and bank accounts claims of Seller that are not related exclusively to the Product , wherever located, whether tangible or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller intangible, real, personal or any of its Affiliates), other than mixed. Notwithstanding anything to the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or contrary contained in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary other Transaction Agreements;
(k) , Purchaser acknowledges and agrees that all of the Excluded Prepaid Expenses;
(l) all rights, title and interest to real following shall remain the property of Seller or Seller, and neither Purchaser nor any of its Affiliates shall have any interest therein: (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(mw) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies records and rights thereunder (including, for the avoidance of doubt, any proceeds reports prepared or received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy GE or any of its Affiliates in connection with the sale of the Purchased Assets and Assumed Liabilities and the transactions contemplated hereby, including all analyses relating to the Business or Purchaser so prepared or received; (x) all confidentiality agreements with prospective purchasers of the Business or any assetsportion thereof (except that Seller or its Affiliates, properties as applicable, shall assign to Purchaser or its designee at the Closing all of such assignor’s rights under such agreements to confidential treatment of information with respect to the Purchased Assets and rightsAssumed Liabilities and with respect to solicitation and hiring of the Transferred Employees); (y) all bids and expressions of interest received from third parties with respect thereto; and (z) all privileged materials, documents and records in the possession of whateverGE or any of its Affiliates to the extent such materials, kind documents and naturerecords are (A) not related to the Purchased Assets and Assumed Liabilities , real, personal (B) related to any Excluded Asset or mixed, tangible or intangibleExcluded Liability, or otherwise, prior (C) related to any matter for which Seller retains or has an obligation to indemnify the Purchaser Indemnified Parties pursuant to Article VII (without giving effect to the Burgundy Closing provisions of Section 7.01(b)). Purchaser further acknowledges and agrees that, with respect to any Action or dispute between Seller or one of its Affiliates, on the one hand, and Purchaser or one of its Affiliates (post-Closing), on the other hand, only Seller may waive any evidentiary privilege that may attach to a pre-closing communication that is determined by a court of competent jurisdiction to be subject to attorney-client privilege, and neither Purchaser, nor any of its Affiliates, shall constitute Excluded Assets)have the right to compel disclosure of such privileged information.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreementforegoing, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Acquired Assets shall not include any of the following assets, properties and rights (tangible assets or intangible and wherever located) property (collectively, the “"Excluded Assets”"):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, capital stock of any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and any other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementSeller;
(b) (i) the minute and stock transfer books, Tax Returns, corporate records, accounting records, any attorney-client, work product or similar privilege of Seller or any of documents which Sellers are required by law to retain in its Affiliates or otherwise possession and other documents relating to or arising out the organization, maintenance and existence of the Program Business each Seller as a result of legal counsel representing Sellercorporation, any of its Affiliates or the Program Business and all documents required in connection with the transactions contemplated by this AgreementChapter 11 Cases; provided, any however, that Buyer shall be given reasonable access to, and may make copies of, such documents as they exist as of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);Closing Date.
(c) all Excluded Contractsany claims or causes of action of Sellers arising under Sections 542, 543, 544, 545, 547, 548, 549, 551 or 553 of the Bankruptcy Code;
(d) all Excluded Tax Assetsany rights, claims, counterclaims or causes of action not related to, or arising in connection with, the Acquired Assets or the Assumed Liabilities;
(e) all security depositsinsurance policies in existence as of the Closing Date, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwisesubject to Buyer's rights to insurance proceeds pursuant to Section 1.1(i);
(f) all cashany insurance rights or claims of any Seller not related to, cash equivalentsor arising in connection with, credit cards and bank accounts of Seller the Acquired Assets or any of its Affiliatesthe Assumed Liabilities;
(g) all Books and Records (including any Tax Return assets of Seller any Employee Benefit Plan, including, without limitation, any assets of any Employee Pension Plan or any of its Affiliates), other than the Transferred Books and RecordsEmployee Welfare Plan;
(h) all employee any assets and personnel records properties (real or personal) of Seller or any Sellers that, in the ordinary course of its Affiliates relating to employees business, were located at Sellers' closed facility in Wilmington, Delaware as of Seller or any of its Affiliates or the Transferred EmployeesSeptember 1, other than the Transferred Business Employee Records1996;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit PlansExcluded Trademarks;
(j) all rights any refunds or repayments owing to Sellers arising from any overpayment by Sellers of premiums for workers compensation insurance relating to claims which accrue or will accrue arising at any time prior to Seller or any of its Affiliates under this Agreement or any of the Ancillary AgreementsClosing;
(k) the Excluded Prepaid ExpensesKnoxville Equipment;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real propertyRejected Assets;
(m) any and all Swiss Manufacturing Facilities Tangible Personal Propertyassets of Sellers which infringe upon or are otherwise in conflict with the proprietary rights of any third party;
(n) all insurance policies and any of the rights thereunder (including, for of Sellers under the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)))Transaction Documents;
(o) all insurance proceeds which Seller or any of its Affiliates has a right escrow funds related to receive Excluded Liabilities, except as of otherwise agreed upon by the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m))parties;
(p) all accounts receivable, notes receivable, rebates receivable goodwill associated with the Acquired Assets and other miscellaneous receivables of Seller or any of its Affiliates Assumed Liabilities; and
(q) in the event that either (i) the Union employees at the Chambersburg facility fail to ratify that certain agreement, dated November 4, 1996, among the extent that they are not related to Union, Hartmarx and Sellers (the Program Business "Union Ratification") or (ii) Sellers despite their best efforts, shall have failed to obtain for Buyer either (x) an agreement with the lessor under the lease covering the Chambersburg, Pennsylvania facility (the "Chambersburg Lease") or (y) assurances satisfactory to Buyer that are related Buyer will be provided at least 12 months' access to the Business such facility, in either case on terms and conditions satisfactory to the extent Buyer, and either such event results in any administrative claims for severance payments or damages relating to or arising out termination of the operation Chambersburg Lease (either of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of items (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any above, a "Chambersburg Event") then Excluded Liability;
Assets shall include the Chambersburg Pant Shop Equipment; provided that such equipment shall be liquidated promptly by Sellers and all proceeds therefrom in excess of (t1) all assets, properties and rights described on Schedule 2.2(tadministrative claims resulting from the occurrence of a Chambersburg Event (2) $350,000 shall be promptly paid over to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Buyer.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to Section 1.1(a) (if there is a conflict, ambiguity or other dispute, the contrary exclusions in this Section 1.1(b) shall control the inclusions in Section 2.1 of this Agreement1.1(a)), from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include (i) MAST’s receivables, cash, cash equivalents, bank deposits or similar cash items (other than deposits or prepayments related to a Purchased Asset or employee receivables); (ii) any Intellectual Property or Information of MAST, other than the following Team-Related Know-how and right to performance attribution; (iii) any (A) confidential personnel records pertaining to any member of the Team, and (B) other Business Records which MAST or any Affiliate of MAST is required by applicable Law to retain; provided, that GP Corp or GECM , as applicable, shall have the right, to the extent permitted by applicable Law and subject to reasonable restrictions, to make copies of any portions of such retained Business Records that relate to the Team; (iv) any confidential information related to any investor in any investment fund or account managed by MAST that MAST is required by applicable Law or Contract to retain; (v) any claim, right or interest of MAST or any Affiliate of MAST in or to any refund, rebate, abatement or other recovery for Excluded Taxes, together with any interest due thereon or penalty rebate arising therefrom; (vi) the right to use MAST’s name, trademark or trade dress; (vii) any rights to or from all current or future investment funds and accounts managed by MAST, including the investment management agreements and any management fees or incentive fees in respect of such funds or accounts; (viii) any insurance policies held by MAST or any of its Affiliates or rights of proceeds thereof; (ix) any permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained by MAST or any of its Affiliates from Governmental Bodies; and (x) except as expressly included among the Purchased Assets, any of MAST’s or any of its Affiliate’s rights, claims or causes of action against Third Parties relating to the assets, properties or operations arising out of transactions occurring prior to, and rights including, the Effective Date (tangible such rights, assets and properties, whether or intangible and wherever located) (collectivelynot reflected on MAST’s financial statements, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Asset Purchase Agreement (Great Elm Capital Group, Inc.)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from and after the Closing, The Seller and its Affiliates shall will retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaserownership of, and the Transferred Assets shall Buyer not include purchase at the Closing only the following assets, properties and rights assets (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(ai) other than the Transferred IP cash and cash equivalents held by the rights provided Seller as of the Closing Date (as defined in this Agreement and Section 3.1 hereof) including, without limitation, all amounts which, as of the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned Closing Date are represented by Seller or its Affiliates that consist of Seller Marks) checks and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth instruments on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business deposit in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements lockbox and other accounts which are included among the Purchased Assets under clause (vi) of Section 1.1, whether or not such checks or other instruments have been honored or have been cleared as of the Closing Date but expressly excluding cash which represents the proceeds of any Action described by Section 2.2(s), insurance claim paid under any property or casualty insurance policy in respect of any damage suffered or loss incurred with respect to the Purchased Assets between the date hereof and the Closing Date;
(ii) the portions intercompany accounts receivable due as of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for Closing Date from the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Seller’s Affiliates;
(ga) all Books for purposes of this Agreement, “Affiliate” shall mean any other Person that, either directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person any other Person that, either directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such specified Person or organization controlled by, controlling, or under common control with the Seller; and Records “Person” shall mean any individual, corporation (including any Tax Return of Seller or any of its Affiliatesnot-for-profit corporation), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employeespartnership, other than the Transferred Business Employee Records;
(i) the sponsorship oflimited liability partnership, and all assets or contracts maintained pursuant to or in connection withjoint venture, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rightsestate, title and interest to real property of Seller or any of its Affiliates (including all rightstrust, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownershipfirm, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates company (including any Asset Selling Entitylimited liability company or joint stock company), association, organization, entity, Governmental Authority, or any syndicate or group that would be deemed to be a Person under Section 13(d)(3) to the extent relating to or arising out of (i) any of the other assetsSecurities Exchange Act of 1934, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liabilityas amended;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Excluded Assets. Notwithstanding anything any provision herein to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include anything expressly excluded from the definition of Purchased Assets pursuant to Section 2.1 and the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) (i) all Cash of the Selling Entities as of the Closing, (ii) any records, documents or other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreementsinformation relating to Excluded Employees, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist materials containing information about any Transferred Employee, in each case, disclosure of Seller Markswhich would violate applicable Law and (iii) all rights and other intellectual property benefits arising out of Seller and its Affiliatesall split-dollar life insurance policies, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementtogether with the associated Liabilities associated therewith;
(b) the Selling Entities’ (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise minute books and other corporate books and records relating to or arising out their organization and existence and the Selling Entities’ books and records relating to Taxes of the Program Business as a result Selling Entities, including Tax Returns filed by or with respect to the Selling Entities; provided, however, that the Buyer shall have the right to make copies of legal counsel representing Sellerany portions of such books and records related to the Purchased Assets in accordance with Section 7.2(b), (ii) books, records, information, files, data and plans (whether written, electronic or in any other medium), advertising and promotional materials and similar items to the extent relating to any Excluded Assets or Excluded Liabilities, and (iii) any other such materials that any Selling Entity is required by Law to retain or is prohibited by Law from transferring to Buyer; provided that to the extent not prohibited by applicable Law, Buyer shall be entitled to make copies of its Affiliates or the Program Business in connection with the transactions any such materials contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”iii);
(c) the Selling Entities’ rights under this Agreement and the other Transaction Documents, and all Excluded Contractsconsideration payable or deliverable to the Selling Entities pursuant to the terms and provisions hereof;
(d) any Contracts of any Selling Entities (including employment Contracts), other than the Assumed Agreements and the Assumed Real Property Leases, together with all Excluded Tax Assetsprepaid assets relating to Contracts other than the Assumed Agreements and the Assumed Real Property Leases;
(e) all security depositsrights, ▇▇▇▇▇▇▇ depositsclaims and causes of action of the Selling Entities against Persons other than the Acquired Subsidiaries and all rights of indemnity, bidwarranty rights, leaserights of contribution, utility rights to refunds, rights of reimbursement and other depositsrights of recovery, and all other forms including rights to insurance proceeds, of deposit placed by Seller the Selling Entities (regardless of whether such rights are currently exercisable), in each case to the extent related to any Excluded Assets or any of its Affiliates for the performance of a Transferred Contract or otherwiseExcluded Liabilities;
(f) all cashrights, cash equivalents, credit cards claims and bank accounts causes of Seller action of the Selling Entities against any director or officer of any of its AffiliatesSelling Entity and all Excluded Insurance Policies and interests in the Excluded Insurance Policies;
(g) all Books and Records (including any Tax Return shares of Seller capital stock or other equity interests of any of the Selling Entities or any of its Affiliates)Subsidiaries, or any securities convertible into, exchangeable or exercisable for shares of capital stock or other equity interests of any of the Selling Entities or any of its Subsidiaries, in each case other than with respect to the Transferred Books and RecordsAcquired Subsidiaries;
(h) all employee Accounts Receivable, intercompany obligations and personnel records other amounts receivable of Seller or any of its Affiliates relating Selling Entity owed to employees of Seller or it by any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsSelling Entity;
(i) the sponsorship ofall bank and deposit accounts, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plansother than those used for Store Cash;
(j) all rights any prepaid income Tax, Tax receivable, Tax Refund or claims which accrue or will accrue other Tax attribute of a Selling Entity with respect to Seller or any of its Affiliates under this Agreement or any of the Ancillary AgreementsPre-Closing Tax Period;
(k) all avoidance, recovery, subordination, or other claims, actions, defenses, rights of setoff, or remedies which any of the Excluded Prepaid ExpensesSelling Entities, the debtors in possession, their estates, or other appropriate parties in interest have asserted or may assert under Sections 502, 510, 542, 544, 545, and 547 through 553 of the Bankruptcy Code or under similar or related state or federal statutes and common law or the proceeds of any of the foregoing (collectively, the “Avoidance Actions”), in each case subject to Section 7.16(b) and Section 2.1(v);
(l) all rightsof the Selling Entities’ books and records necessary to reconcile general unsecured claims that do not relate to the Purchased Assets; and
(m) the Selling Entities’ right, title and interest to real property of Seller (i) the “Acquired Assets” as defined in the purchase agreements filed with the Bankruptcy Court on or any of its Affiliates (including all rights, title and interest prior to the Swiss Manufacturing Facilities) date hereof and all Contracts related made available to Buyer prior to the ownershipexecution hereof, leasein each case, sublease, grant, license or any other similar arrangement with respect to the sale of any real property;
Divested Business (mcollectively, “Divested Assets”) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assetsif any, properties and rights described on set forth in Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets2.2(m).
Appears in 1 contract
Sources: Asset Purchase Agreement (Ascena Retail Group, Inc.)
Excluded Assets. Notwithstanding anything to the contrary in provisions of Section 2.1 of this Agreement2.1, from it is hereby expressly acknowledged and after agreed that the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include include, and Seller is not selling, transferring, assigning, conveying or delivering to Buyer, and Buyer is not purchasing, acquiring or accepting from Seller, the following assets(the rights, properties and rights (tangible assets expressly excluded by this Section 2.2 or intangible and wherever located) (collectively, otherwise -8- excluded by the “terms of Section 2.1 from the Purchased Assets being referred to herein as the "Excluded Assets”"):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller of Seller's or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its AffiliatesAffiliate's receivables, including all Intellectual Propertycash, Seller Marks bank deposits or other intellectual property set forth on Schedule 2.2(a) to this Agreementsimilar cash items or employee receivables;
(b) (i) any attorney-client, work product or similar privilege Proprietary Information of Seller or any of its Affiliates or otherwise relating to or arising out of Affiliate other than (i) the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), Intellectual Property and (ii) certain specified rights in the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, Licensed Intellectual Property; as expressly provided under the “Privileged Seller Documents”)Intellectual Property Agreement;
(c) all Excluded Contractsany (i) confidential personnel records, subject to Section 5.1(c) below, pertaining to any Business Employee; (ii) other books and records that Seller or any Affiliate is required by Law to retain; provided, however, that Buyer shall have the right to make copies of any portions of such books and records that relate to the Business or any of the Purchased Assets; and (iii) any information management system of Seller or any Affiliate other than those used primarily in the conduct of the Business and contained within Principal Equipment included as a Purchased Asset pursuant to Section 2.1;
(d) all Excluded Tax Assetsany claim, right or interest of Seller or any Affiliate in or to any refund, rebate, abatement or other recovery for Taxes, together with any interest due thereon or penalty rebate arising therefrom, for any periods prior to the Closing Date;
(e) all security deposits"Lucent Technologies" marked sales and marketing or packaging materials, ▇▇▇▇▇▇▇ depositssamples, bidprototypes, lease, utility and other deposits, similar Lucent Technologies identified sales and all other forms of deposit placed by Seller marketing or packaging materials and any of its Affiliates for the performance of a Transferred Contract or otherwisemarketing studies;
(f) all cash, cash equivalents, credit cards the Excluded Contracts and bank accounts of Seller or any of its Affiliatesthe Nonassignable Licenses;
(g) all Books and Records (including any Tax Return insurance policies or rights of Seller or any of its Affiliates), other than the Transferred Books and Recordsproceeds thereof;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsExcluded Leased Equipment;
(i) the sponsorship of, and all property or assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plansspecifically identified on Schedule 2.2(i);
(j) all rights any of Seller's or any Affiliate's rights, claims which accrue or will accrue causes of action against Third-Parties relating to the assets, properties, business or operations of Seller or any Affiliate arising out of its Affiliates under this Agreement or any of transactions occurring prior to, and including, the Ancillary Agreements;Closing Date; and
(k) the Excluded Prepaid Expenses;any Governmental Permits that are not assignable or transferable.
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assetsproperties, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties interests and rights of Seller or any of its Affiliates, of whatever kind Affiliate not substantially related to the Business and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, necessary for the avoidance conduct of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Business as presently conducted.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tollgrade Communications Inc \Pa\)
Excluded Assets. Notwithstanding anything to the contrary in provisions of Section 2.1 of this Agreement2.1, from it is hereby expressly acknowledged and after agreed that the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include include, and Seller is not granting, bargaining, selling, transferring, assigning, conveying or delivering to Buyer or a Buyer Designee, and neither Buyer nor any Buyer Designee is purchasing, acquiring or accepting from Seller, any of the following assetsrights, properties or assets set forth or described in paragraphs (a) through (g) below (the rights, properties and rights (tangible assets expressly excluded by this Section 2.2 or intangible and wherever located) (collectively, otherwise excluded by the terms of Section 2.1 from the Purchased Assets being referred to herein as the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller Property or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege Information of Seller or any Affiliate other than the Assigned Intellectual Property;
b) any (i) confidential personnel records pertaining to any Business Employee to the extent applicable Law prohibits the transfer of its Affiliates such information, or otherwise (ii) other books and records that Seller or any Affiliate of Seller is required by Law to retain; provided, however, that Buyer shall have the right, to the extent permitted by Law and subject to reasonable restrictions, to make copies of any portions of such retained confidential personnel records and other books and records that relate to the Seller Business, the Purchased Assets, the Assumed Liabilities or the Transferred Employees; and (iii) any information management system of Seller or any Affiliate of Seller other than those used or held for use primarily in the operation or conduct of the Seller Business;
c) any claim, right or interest of Seller or any Affiliate of Seller in or to any refund, rebate, abatement or other recovery for Excluded Taxes, together with any interest due thereon or penalty rebate arising therefrom;
d) the Excluded Contracts, the Non-assignable Licenses and the Excluded Leased Equipment;
e) except as specified in Section 2.1, any of Seller’s or any Affiliate’s rights, claims or causes of action against Third Parties relating to the assets, properties or operations of the Seller Business arising out of transactions occurring prior to, and including, the Program Business Closing Date;
f) except as a result of legal counsel representing Seller, any of its Affiliates specifically provided in Section 5.4 or the Program Business in connection with the transactions contemplated by this Agreementapplicable Assignment and B▇▇▇ of Sale and Assumption Agreement for any particular jurisdiction, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this AgreementBenefits Plans; and
(ug) for the avoidance of doubt, all other assets, properties properties, interests and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are Affiliate not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior related primarily to the Burgundy Closing shall constitute Excluded Assets)Seller Business.
Appears in 1 contract
Excluded Assets. Notwithstanding anything Nothing in this Agreement will require Seller to the contrary in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery sell or transfer to Purchaser, and the Transferred Specified Assets shall will not include be deemed to include, any of the following assets, properties and rights (tangible assets or intangible and wherever located) any right or interest in or to any of the following assets (collectively, the “Excluded Assets”):
): (a) other than the Transferred IP subject to Section 1.10 and the rights provided in this Agreement and the Ancillary Agreementswithout limiting any obligation of Seller thereunder, any Intellectual PropertySpecified Contract, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) if (i) a Consent is required to be obtained from any attorney-client, work product Person in order to permit the sale or similar privilege transfer to Purchaser of the rights of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), under such Specified Contract; and (ii) such Consent shall not have been obtained by the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to Closing; provided, however, that after obtaining any such privilege described in clause Consent after the Closing, such Specified Contract shall be a Specified Asset; (ib) the BARDA Contract (such documents, it being agreed that upon execution of a Novation Agreement the “Privileged Seller Documents”BARDA Contract shall be deemed to be a Specified Asset);
; (c) all Excluded Contracts;
any cash, cash equivalents or Accounts Receivable, other than the Purchased Accounts Receivable; (d) any Tax records of Seller (including all Excluded Tax tax returns) related to the Specified Assets;
; (e) all security rights of Seller to any refunds, or rights or claims to refunds, of Taxes, Tax deposits, ▇▇▇▇▇▇▇ depositsTax prepayments, bid, lease, utility and Tax credits or other deposits, and all Tax assets attributable to a Tax payment made or other forms of deposit placed Tax-related action taken by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller refunds, or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue to refunds, of Taxes, Tax deposits, Tax credits or will accrue to Seller or other Tax assets for any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences taxable period prior to the Closing Date); (other than to the extent provided in Section 2.1(m));
(pf) all accounts receivableautomobiles, notes receivableoffice, rebates receivable telecommunications, network, and information technology equipment, computers and software or software as a service and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts infrastructure and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets)tangible assets;
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Asset Purchase Agreement (Emergent BioSolutions Inc.)
Excluded Assets. Notwithstanding anything herein to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closing, no Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the saleobligated to sell, assign, convey, transfer, conveyance, assignment and delivery or deliver to Purchaser, each Seller shall keep and the Transferred Assets retain, and Purchaser shall not include purchase, acquire, or accept, all of the following assets, rights, and properties and rights (tangible of any Seller, whether or intangible and wherever locatednot relating to the operations of the Business by any Seller, which are not expressly identified as Acquired Assets pursuant to Section 2.1(a) through Section 2.1(j) (collectively, the “Excluded Assets”):). The Excluded Assets include, without limitation:
(a) other than the Transferred IP all cash and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks cash equivalents (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property except as expressly set forth on Schedule 2.2(a) to this Agreementin Section 2.1(c));
(b) all accounts receivable, including contracts in transit (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business except as a result of legal counsel representing Seller, any of its Affiliates or the Program Business expressly set forth in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s2.1(d), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contractsrecreational vehicles excluded pursuant to the provisions of Section 6.2(c)(i);
(d) all Excluded Tax Assetsrebates payable to any Seller (including volume rebates earned by achieving purchase levels and any specially negotiated rebates or incentives);
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility assets and other deposits, and all other forms of deposit placed rights relating to any Benefit Plans ever maintained by any Seller or any of its Affiliates for the performance or covering employees of a Transferred Contract any Seller or otherwiseits Affiliates or to which any Seller or its Affiliates has made any contribution or to which any Seller or its Affiliates could be subject to any liability;
(f) all cash, cash equivalents, credit cards Contracts that are not Assigned Contracts (the “Excluded Contracts”) (it being agreed Excluded Contracts includes all dealer sales and bank accounts of Seller or any of its Affiliatesservice agreements for the Business and all agreements relating to dealer management systems (“DMS”));
(g) all Books and Records prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits (including any Tax Return the security deposit under the Phoenix Lease, which shall be deemed transferred by LD Phoenix to Purchaser upon an addition to the Net Cash payable to such Seller in the Flow of Seller or any Funds Memorandum for the Closing of its Affiliatesthe Phoenix Dealership equal to the amount of such security deposit in lieu of the landlord thereunder paying such amount to LD Phoenix and Purchaser paying such amount to such landlord), other than the Transferred Books charges, sums, and Recordsfees (except as expressly set forth in Section 2.1(c) or Section 2.1(e));
(h) all employee information, records and personnel records of Seller or documents, in whatever form, which do not constitute Acquired Information, including, without limitation, the organizational documents, minute books and Tax Returns any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsSeller;
(i) all rights of the sponsorship of, Seller Parties under this Agreement and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plansthe Ancillary Documents;
(j) all rights correspondence or claims which accrue records of Sellers that constitute attorney-client privileged communications, attorney-client work product or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreementsother confidential communications;
(k) all rights to any action, suit or claim of any nature arising prior to the applicable Closing available to or being pursued by Sellers to the extent it relates to an Excluded Prepaid ExpensesAsset or an Excluded Liability, whether arising by way of counterclaim or otherwise;
(l) all rights, title insurance policies of Sellers and interest all rights to real property of Seller or any of its Affiliates (including all rights, title applicable claims and interest proceeds thereunder for claims arising prior to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real propertyapplicable Closing;
(m) all Swiss Manufacturing Facilities Tangible Personal Business Intellectual Property (other than the Acquired Goodwill and Acquired Information), together with all income, royalties, damages, and payments due or payable at the applicable Closing or thereafter (including damages and payments for past or future infringements or misappropriations thereof) with respect thereto, the right to sue and recover for past infringements or misappropriations thereof, any and all corresponding rights that, now or hereafter, may be secured throughout the world, and all copies and tangible embodiments of any such Business Intellectual Property, including all advertising, marketing, and promotional materials and all other printed or written materials, including website content;
(ni) each Seller’s DMS and servers containing such DMS and (ii) all insurance policies emails and rights thereunder (including, for the avoidance email accounts of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)))each Seller’s employees;
(o) all insurance proceeds which parts and accessories retained by the applicable Seller or any of its Affiliates has a right to receive as in accordance with Section 3(b) of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));Base Purchase Price Allocation Schedule; and
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) rights relating to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights assets specifically described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets2.2(p).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, Seller is not selling, transferring or assigning, and Buyer is not acquiring, any property or assets pursuant to this Agreement other than as expressly described in Section 2.1 1.1 (all such excluded property and assets, collectively, the "Excluded Assets"). Without limiting the generality of the foregoing, the following property and assets of Seller constitute Excluded Assets:
(a) cash, cash equivalents, securities (whether or not marketable) and investments owned by or for the account of Seller or its affiliates, except to the extent expressly provided in Sections 1.1(i), 1.1(j) and 1.1(k);
(b) except as expressly provided in Section 1.1(l), all rights of Seller or its affiliates to any refunds, rights of set off or rights of recoupment for Taxes levied and imposed upon, or in connection with, the ownership or operation of the Business, the Assets or the Assumed Liabilities on or before the relevant Closing Date;
(c) Seller's or its affiliates' rights under any policies of insurance or to any benefits, proceeds, or premium refunds payable or paid thereunder or with respect thereto;
(d) Seller's or its affiliates' corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, licenses, approvals and authorizations to conduct its business and activities (including securities industry licenses, approvals or other authorizations to conduct its business and activities in the securities industry), memberships in any securities, commodities or other self-regulatory organizations, taxpayer and other identification numbers, Tax Returns (as defined in Section 3.5(d)) and other Tax Records (as defined in Section 3.5(c)), seals, minute books, stock ledgers, stock transfer books and similar organizational and/or governance documents, books and records of Seller, and any and all other information, documents, books and records of Seller or its affiliates, including those related to any operations, accounting, information technology or services, legal, compliance, human resources, training and development, payroll, treasury, insurance, Tax, marketing, or other general or administrative services, software or assets, and products or services supplied or offered by Seller or any of its affiliates, in each case whether or not related to the Business;
(e) the rights of Seller or its affiliates under this Agreement, from and after the Closingany other Transaction Document or any other contract, agreement, commitment or instrument between Seller and its Affiliates shall retain Buyer (alone or with other persons, as the case may be), including the Confidentiality Agreement, Statements of Intention and Employee Releases;
(f) all of their respective Seller's and its affiliates' e-mail addresses, URLs, websites and website content;
(g) all patents, copyrights, trademarks, trade names, trade dress, domain names, service marks, logos, corporate names, and similar intellectual properties, all goodwill and other rights, titles and interests in and toappurtenant or related to the foregoing, and there shall be excluded from any registration or application for any of the saleforegoing, transferin each case owned, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible used or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned licensed by Seller or any of its Affiliates that consist affiliates (whether or not in connection with the Business), and all materials, packaging, supplies or signage incorporating any of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementthe foregoing;
(b) (ih) any attorney-clientand all trade secrets, work product or similar privilege proprietary information and proprietary trade practices of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordsaffiliates;
(i) except as expressly provided to the sponsorship ofcontrary in Section 1.1(q), all assets held with respect to, and all assets rights of Seller and its affiliates pursuant to, Seller's Plans (as defined below) and the other benefits plans, programs and policies of Seller or contracts maintained pursuant to or in connection with, all Seller Benefit Plansits affiliates;
(j) all rights or claims which accrue or will accrue to intercompany accounts between Seller or and any of its Affiliates under this Agreement or any of the Ancillary Agreementsaffiliates and all rights with respect thereto;
(k) except as otherwise provided in Section 1.1(n), all rights of Seller and/or its affiliates to indemnification or recoupment from Employees, Customers and other third parties with respect to any period prior to the relevant Closing, or as a result of the transactions contemplated hereby or with respect to any of the Excluded Prepaid ExpensesLiabilities (as defined in Section 2.3);
(l) all rightsassets to be excluded as described in Section 1.4, title Section 1.6, and interest to real property of Seller or any of its Affiliates (including all rightsSection 1.7, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real propertyassets that are not transferable as described in Section 1.5;
(m) any and all Swiss Manufacturing Facilities works of art, in each case located in any of the Business Locations that Seller elects, prior to the relevant Closing and in its sole discretion, to remove;
(n) all software, computer programs and other similar technology owned, used by or licensed to Seller or its affiliates (whether or not in connection with the Business), including software, computer programs or similar technology loaded or located on, or integrated into, any computer, server, data storage or data processing equipment, or other hardware or equipment that constitutes Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to WAN circuits located at the Closing (other than to the extent provided in Section 2.1(m))Acquired Locations;
(p) all accounts receivableExcluded Branch Assets, notes receivable, rebates receivable and other miscellaneous receivables of Seller assets exclusively or any of its Affiliates (i) to the extent that they are not primarily related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the ClosingExcluded Locations;
(q) all Manufacturing Registrations;contracts for utilities services at the Leased Real Estate; and
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) letters of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued credit issued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) affiliates for the avoidance benefit of doubtCustomers, including all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Covered L/Cs (as defined in Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets0).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to All assets of Parent or any of its Affiliates that are not included in the contrary in Purchased Assets as described under Section 2.1 2.01 and that are not assets of this Agreement, from and after an Acquired Entity as of the Closing, Seller shall be retained by Parent or such Affiliate, and are referred to herein collectively, as the “Excluded Assets.” Notwithstanding Section 2.01, “Excluded Assets” shall include:
(a) All cash or cash equivalents in hand or in bank accounts held by Parent or any Affiliate (other than Cash);
(b) Other than as provided in Article 7 and other than pursuant to Section 2.01(n), all rights under Employee Benefit Plans of any EPD Group Member that is not an Acquired Entity and all assets, records and vendor arrangements associated with such Employee Benefit Plans, whether held by Parent or any of its Affiliates (other than an Acquired Entity) in trust or otherwise;
(c) Any and all Intellectual Property of Parent and its Affiliates shall retain not described in clause (i) or (ii) of Section 2.01(e) and all of their respective rights, titles and interests in and to, and there shall be excluded from trademarks licensed to Buyer under the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and Trademark License Agreement except for such rights (tangible or intangible and wherever located) as are licensed pursuant thereto (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) All casualty, liability or other insurance policies related to the Business and all Excluded Tax Assetsclaims or rights under any such insurance policies (other than those relating to any Employee Benefit Plan of an Acquired Entity);
(e) all security depositsAny foreign, ▇▇▇▇▇▇▇ depositsfederal, bid, lease, utility state or local Tax refunds or credits and other deposits, duty draw backs on export sales for Taxes and all other forms of deposit placed duties originally paid by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller Parent or any of its Affiliates (including all rightsAcquired Entities) and any foreign, title and interest federal, state or local anti-dumping duty claims, to the Swiss Manufacturing Facilities) and all Contracts related extent attributable to any Tax period ending on or prior to the ownership, lease, sublease, grant, license Closing Date or any other similar arrangement with respect to any real propertyPre-Closing Period, but only to the extent a Tax refund or credit, duty draw back, or anti-dumping duty claim is not included in the calculation of Closing Net Working Capital on the Final Schedule; provided, however, that any refund or credit of a Mexican “asset tax” attributable to any Tax period ending on or prior to the Closing Date or to any Pre-Closing Period shall be an Excluded Asset, but only to the extent such credit is not included in the calculation of Closing Net Working Capital on the Final Schedule;
(mf) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance All real property interests of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller Parent or any of its Affiliates has a right to receive as of other than the Closing that relate to any events, circumstances or occurrences prior to the Closing Transferred Real Property;
(g) All rights (other than to rights of the extent provided in Section 2.1(m)Buyer Group, including the Acquired Entities) under this Agreement, the Other Agreements, the Agreements listed or described on Schedule 2.02(g) (collectively, all such excluded Agreements, the “Excluded Agreements”);
(ph) all accounts receivableAll computer software related to the Business, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) except to the extent that they are not related to included among the Program Business Purchased Assets described in Section 2.01(e) or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred AssetsSection 2.01(f);
(si) Any Intergroup Receivables;
(j) Any Purchased Assets sold or otherwise disposed of in the Ordinary Course of Business and in compliance with Section 5.03 hereof from the date hereof to the Closing Date;
(k) All books, records, files and papers prepared in connection with this Agreement or the Other Agreements and the transactions contemplated hereby and thereby and all Actions available to minute books and corporate records of Parent or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to other than the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this AgreementAcquired Entities); and
(ul) for the avoidance Any and all claims or causes of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior action under Antitrust Laws to the Burgundy extent arising and attributable to the period before the Closing shall constitute Excluded Assets)Date, whether or not currently pending.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Goodyear Tire & Rubber Co /Oh/)
Excluded Assets. Notwithstanding anything to the contrary herein, the following assets and properties of or in Section 2.1 the possession of this Agreement, from any Seller Party (the “Excluded Assets”) shall be retained by the Seller Parties and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the saleTransferred Assets and, transferif applicable, conveyanceshall be transferred out of the Transferred Entities (if held by a Transferred Entity) prior to the Closing notwithstanding any other provision of this Agreement:
(i) all cash and cash equivalents in any bank account of a Seller Party and all other cash and cash equivalents (except for any cash that is a Transferred Prepaid Expense);
(ii) any accounts receivables and Inventory, assignment other than any Transferred Inventory and delivery Transferred Prepaid Expenses, arising from the Business prior to Purchaserthe Closing Date;
(iii) all of the Seller Parties’ right, title and interest in the Retained Real Property;
(iv) all Seller Intellectual Property and Seller Technology;
(v) all rights to the Seller Names and Seller Marks, together with any contracts, agreements or understandings (other than any Assumed Contract) granting rights to use the same (without limiting the rights granted to Buyer pursuant to the Transitional Trademark License Agreement);
(vi) all nontransferable or nonassignable Permits, including nontransferable Environmental Permits, and any Permits held by a Seller Party that are not Related to the Business other than, in any event, the assets described in Section 2.01(a)(iv);
(vii) other than any loans or advances from one Transferred Entity to another Transferred Entity, all loans or advances among the Seller Parties;
(viii) other than equity interests in the Transferred Entities, any equity securities or ownership interests;
(ix) all Tax Returns relating to any Tax of Seller, all Tax refunds or Tax credits of any Seller Party (other than any Transferred Entity), and any Tax refunds or Tax credits in respect of the Transferred Assets shall not include for taxable periods (or portions thereof) ending on or prior to the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):Closing Date;
(ax) other than the Transferred IP Assets described in Section 2.01(a)(xiv), all policies and programs of or agreements for insurance that are not exclusive to the rights provided Business or Transferred Assets and interests in this Agreement insurance pools and the Ancillary Agreementsprograms (in each case including self-insurance, any Intellectual Property, Seller Marks (captive insurance and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its insurance from Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (icollectively, “Insurance Policies”) any attorney-clientand, work product or similar privilege of Seller or any of its Affiliates or otherwise relating subject to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s7.03(b), and (ii) the portions all rights of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement nature with respect to any real property;
(m) Insurance Policy and any recoveries thereunder and any rights to assert Claims seeking any such recoveries, including all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all net insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received by a Seller Party prior to, on or following the Closing Date under any Insurance Policy solely with respect to any such policies (other than to A) the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller loss, damage, destruction or any condemnation of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assetsExcluded Assets that is, properties or rights of Seller would have been but for such loss, damage, destruction or any of its Affiliates that constitute condemnation, included in the Excluded Assets or (iiB) any Excluded Liability;
(txi) all causes of action (including counterclaims) and defenses against third parties to the extent relating to any of the Excluded Assets or the Excluded Liabilities (excluding, for clarity, any right to make any claims in respect of the R&W Policy);
(xii) assets of any Employee Plans;
(xiii) all personnel and employment records for employees and former employees of a Seller Party (other than the Transferred Books and Records and the Business Employee Records transferred pursuant to Section 2.01(a)(viii)); provided that any personnel and employment records for any Transferred Employee that are not Business Employee Records will be subject to Section 6.03(b);
(xiv) all assets, rights and properties and rights described on Schedule 2.2(t) expressly excluded from transfer to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy Buyer or any of its Affiliates in pursuant to Article VIII of this Agreement;
(A) all corporate minute books (and other similar corporate records) and stock records of any assetsSeller Party (other than the Transferred Books and Records and Business Employee Records and corporate records of the Transferred Entities, properties and rightswhich corporate records of the Transferred Entities, for clarity, shall be obtained by Buyer by virtue of whatever, kind and nature, real, personal or mixed, tangible or intangibleits purchase of the Transferred Equity Interests at the Closing pursuant to Section 2.01(a)(x)), or otherwise, prior (B) any books and records that are unrelated to the Burgundy Closing shall Transferred Assets (other than the Transferred Books and Records and the Business Employee Records transferred pursuant to Section 2.01(a)(viii));
(xvi) (A) all records and reports prepared or received by the Seller Parties in connection with the negotiation or execution of the Transaction Agreements or the transactions contemplated thereby or the related sale process, including all analyses relating to the Business or Buyer so prepared or received, (B) all bids and expressions of interest received from third parties with respect to prospective purchasers of the Business or any portion thereof and (C) all Privileged Communications, and all other privileged communications, materials, documents and records that are unrelated to the Business;
(xvii) all rights of any Seller Party (other than the Transferred Entities) under the Transaction Agreements;
(xviii) subject to Section 2.01(a)(ii)(B), Shared Contracts to the extent allocated to Seller or an Affiliate of Seller pursuant to Section 2.02(b);
(xix) any assets used in the research or development function of Seller or its Affiliates other than the Transferred Assets and any assets that constitute Excluded Transferred Assets following the Closing, including pursuant to Section 7.12 of this Agreement;
(xx) all tangible personal property physically located at the premises of Retained Real Property at the Effective Time, except for (1) any tangible personal property that is Related to the Business, (2) any Transferred Inventory, (3) the Transferred Books and Records and the Business Employee Records transferred pursuant to Section 2.01(a)(viii) and (4) Transferred R&D Assets; and
(xxi) all of the assets set forth on Schedule 2.01(b)(xxi).
Appears in 1 contract
Sources: Asset Purchase Agreement (Elanco Animal Health Inc)
Excluded Assets. Notwithstanding anything No security interest is or will be granted pursuant to the contrary this Agreement or any other Security Document in Section 2.1 any right, title or interest of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toany Grantor under or in, and there shall be excluded from the sale, transfer, conveyance, assignment “Collateral” and delivery to Purchaser, and the Transferred Assets “Pledged Collateral” shall not include (the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided any interest in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks leased real property (including fixtures) (and any social media handles owned by Seller there shall be no requirement to deliver landlord lien waivers, estoppels or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementcollateral access letters);
(b) any fee interest in owned real property (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”including fixtures);
(c) all Excluded any Instruments, Contracts, Chattel Paper, Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Industrial Design Licenses, Trade Secret Licenses or other contracts or agreements with, or issued by, Persons other than Holdings, a Subsidiary of Holdings or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreement (in each case, except to the extent that, pursuant to the PPSA or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreement);
(d) all Excluded Tax Assetsany assets over which the granting of such a security interest in such assets by the applicable Grantor would be prohibited by any contract permitted under the Credit Agreement (provided such contract was not entered into in contemplation thereof), applicable law, regulation, permit, order or decree or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), or requires a consent (to the extent that, with respect to any assets that would otherwise constitute Collateral, any applicable Grantor has sought such consent using commercially reasonable efforts) of any Governmental Authority that has not been obtained (in each case after giving effect to the applicable anti-assignment provisions of the PPSA to the extent that the assignment of which is expressly deemed effective under the PPSA notwithstanding such prohibition);
(e) all any assets to the extent that such security depositsinterests would result in material adverse tax consequences to Holdings and its Subsidiaries, ▇▇▇▇▇▇▇ depositsincluding any Grantor hereunder, bid, lease, utility and other deposits, and all other forms of deposit placed as reasonably determined by Seller Holdings (it being understood that the Lenders shall not require Holdings or any of its Affiliates for Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law, except as required under the performance of a Transferred Contract or otherwiseLoan Documents);
(f) all cash, cash equivalents, credit cards and bank accounts any assets to the extent that the granting or perfecting of Seller a security interest in such assets would result in costs or consequences to Holdings or any of its AffiliatesSubsidiaries, including any Grantor hereunder, as reasonably agreed in writing after the date hereof by Holdings and the Agent that are excessive in view of the benefits that would be obtained by the Secured Parties;
(g) all Books any (i) Equipment and/or Inventory (and/or related rights and/or assets) that would otherwise be included in the Security Collateral (and Records such Equipment and/or Inventory (including and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such Equipment and/or Inventory (and/or related rights and/or assets) is subject to a Lien permitted by Section 8.2 of the Credit Agreement and (ii) other property that would otherwise be included in the Security Collateral (and such other property shall not be deemed to constitute a part of the Security Collateral) if such other property is subject to a Permitted Lien described in Section 8.2(n) or 8.2(r) of the Credit Agreement (but, in each case, only for so long as such Liens are in place) and, if such Lien is in respect of a Hedge Agreement, such other property consists solely of (x) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (y) any Tax Return of Seller assets relating to such assets, proceeds, dividends or distributions or to obligations under any Hedge Agreement, and/or (z) any other assets consisting of, relating to or arising under or in connection with (1) any Hedge Agreements or (2) any other agreements, instruments or documents related to any Hedge Agreement or to any of its Affiliatesthe assets referred to in any of subclauses (x) through (z) of this clause (ii), other than the Transferred Books and Records;
(h) all employee any personal property (and/or related rights and/or assets) that (A) would otherwise be included in the Security Collateral (and personnel records such property (and/or related rights and/or assets) shall not be deemed to constitute a part of Seller the Security Collateral) if such property has been sold or otherwise transferred in connection with (i) a Franchise Financing Disposition or Securitization Transaction (or constitutes the proceeds or products of any property that has been sold or otherwise transferred in connection with a Franchise Financing Disposition or Securitization Transaction (except as provided in the proviso to this subsection)) or (ii) a Sale and Leaseback Transaction permitted under the Credit Agreement, or (B) is subject to any Permitted Lien and consists of its Affiliates relating property subject to employees any such Sale and Leaseback Transaction or intangibles related thereto (but only for so long as such Liens are in place), provided that, notwithstanding the foregoing, a security interest of Seller the Agent shall attach to any money, securities or other consideration received by any Grantor as consideration for the sale or other disposition of its Affiliates or such property as and to the Transferred Employees, other than the Transferred Business Employee Recordsextent such consideration would otherwise constitute Security Collateral;
(i) Equipment and/or Inventory (and/or related rights and/or assets) subject to any Permitted Lien that secures Indebtedness permitted by the sponsorship of, and all assets Credit Agreement that is incurred to finance or contracts maintained pursuant to or refinance such Equipment and/or Inventory (but only for so long as such Permitted Lien is in connection with, all Seller Benefit Plansplace);
(j) all rights or claims without duplication, any Capital Stock which accrue or will accrue to Seller or any is specifically excluded from the definition of its Affiliates under this Agreement or any Pledged Stock by virtue of the Ancillary Agreementsproviso contained in such definition;
(k) any Capital Stock and other securities of a Restricted Subsidiary of Holdings to the Excluded Prepaid Expensesextent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in Holdings or any of its Restricted Subsidiaries being required to file separate financial statements for such Restricted Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to such requirement;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property[reserved];
(m) all Swiss Manufacturing Facilities Tangible Personal Propertyany aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part of any of the foregoing;
(n) all insurance policies and rights thereunder letters of credit individually with a value of less than $10,000,000;
(including, o) for the avoidance of doubt, any proceeds received Deposit Account and any Money, cash, cheques, other negotiable instrument, funds and other evidence of payment therein held by any “qualified intermediary” in connection with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m))“Like-Kind Exchange”;
(p) all accounts receivableany Money, notes receivablecash, rebates receivable cheques, other negotiable instrument, funds and other miscellaneous receivables evidence of Seller payment held in any Deposit Account of Holdings or any of its Affiliates (i) Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of Holdings or any of its Subsidiaries, which must be held for or returned to the extent that they are not related applicable counterparty under applicable law or pursuant to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closingcontractual obligations;
(q) all Manufacturing Registrationsany property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property is subject to other Liens permitted by Section 8.2(kk) of the Credit Agreement to the extent that such assets are not required to constitute “Collateral” under the Credit Agreement;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets)Foreign Intellectual Property;
(s) all Actions available to or being pursued any Goods in which a security interest is not perfected by Seller or any of its Affiliates (including any Asset Selling Entity) filing a financing statement under the PPSA, except to the extent relating to such Goods constitute Eligible Service Vehicles or arising out Eligible Rental Equipment, in each case by operation of clause (if) any of the other assetsdefinition of such term in the Credit Agreement, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liabilityand are included in the Canadian Borrowing Base;
(t) all assetsthe last day of the term of any lease or agreement therefor but upon the enforcement of the security interest granted hereby in the Collateral, properties and rights described on Schedule 2.2(t) the Grantors or any of them shall stand possessed of such last day in trust to this Agreementassign the same to any person acquiring such term; and
(u) for “consumer goods” of any Grantor as that term is defined in the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)PPSA.
Appears in 1 contract
Sources: Canadian Guarantee and Collateral Agreement (Herc Holdings Inc)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreementforegoing, from and after the Closing, Seller and its Affiliates Assets shall retain all of their respective rights, titles and interests in and tonot include, and there shall be is excepted, reserved and excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) sale contemplated hereby (collectively, the “Excluded Assets”):
): (a) other than all credits and refunds and all accounts, instruments and general intangibles (as such terms are defined in the Transferred IP Texas Uniform Commercial Code) attributable to the Assets to the extent attributable to any period of time prior to the Effective Time and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned that do not relate to obligations assumed by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) Purchaser pursuant to this Agreement;
; (b) all claims of Sellers for refunds of or loss carry forwards to the extent attributable to (i) any attorney-clientad valorem, work product or similar privilege of Seller severance, production or any of its Affiliates other taxes attributable to any period prior to the Effective Time even if applied for after the Effective Time, (ii) income or otherwise relating franchise taxes, or (iii) any taxes attributable to or arising out of the Program Business as a result of legal counsel representing SellerExcluded Assets, any of its Affiliates or the Program Business and such other refunds, and rights thereto, for amounts paid in connection with the transactions contemplated Assets and attributable to the period prior to the Effective Time, including refunds of amounts paid under any gas gathering or transportation agreement, to the extent the same do not relate to obligations assumed by Purchaser pursuant to this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
; (c) all Excluded Contracts;
proceeds, income or revenues (dand any security or other deposits made) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for to the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating extent attributable to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or Assets for any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences period prior to the Closing (other than Effective Time, if they do not relate to the extent provided in Section 2.1(m));
(p) all accounts receivableobligations assumed by Purchaser pursuant to this Agreement, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
Assets; (td) all assetsof Sellers’ proprietary computer software, properties technology, patents, trade secrets, copyrights, names, trademarks, logos and other intellectual property; (e) subject to Section 9.2(d), all of Sellers’ rights described on Schedule 2.2(tand interests in geological and geophysical data which cannot be transferred without the consent of or payment to any third Person; (f) all documents and instruments of Sellers that may be protected by an attorney-client privilege unless such privileged documents and instruments pertain to litigation (including pending and threatened litigation) which Purchaser is assuming; (g) subject to Section 9.2(d), data and other information that cannot be disclosed or assigned to Purchaser as a result of confidentiality or similar arrangements under agreements with Persons who are not Affiliates of Sellers; (h) concurrent audit rights arising under any of the Material Agreements or otherwise with respect to any period prior to the Effective Time (unless relating to obligations assumed by Purchaser pursuant to this Agreement) or to any of the Excluded Assets; and
(ui) all corporate, partnership and income tax records of Sellers; (j) copies of all Records (which shall be prepared at Sellers’ sole cost and expense); (k) personal property such as vehicles and certain equipment, supplies and office equipment, or any other items, in each case, to the extent described on Exhibit E; and (l) all monies held in escrow pursuant to that certain Abandonment and Remediation Funding Agreement dated December 22, 2006, by and between Exxon Mobil Corporation and Quantum Resources Management, LLC (the “A&R Agreement”); and (m) all letters of credit opened for the avoidance benefit of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior Exxon Mobil Corporation pursuant to the Burgundy Closing shall constitute Excluded Assets)A&R Agreement.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in provisions of Section 2.1 of this Agreement2.1, from it is hereby expressly acknowledged and after agreed that the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include include, and neither Seller nor any Affiliate is granting, selling, transferring, assigning, conveying or delivering to Buyer or a Buyer Designee, and neither Buyer nor any Buyer Designee is purchasing, acquiring or accepting from Seller or any Affiliate, any of the following assetsrights, properties or assets set forth or described in paragraphs (a) through (l) below (the rights, properties and rights (tangible assets expressly excluded by this Section 2.2 or intangible and wherever located) (collectively, otherwise excluded by the terms of Section 2.1 from the Purchased Assets being referred to herein as the “Excluded Assets”):
): (a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller of Seller’s or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its AffiliatesAffiliate’s receivables, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards bank deposits or similar cash items; (b) Inventory; (c) Intellectual Property or Information, including Trade Secrets and bank accounts manufacturing know-how including but not limited to those in Schedule 2.2(c), owned or controlled by Seller or any Affiliate other than the Assigned Intellectual Property; (d) any (i) confidential personnel records pertaining to any Business Employee except to the extent required to be transferred by applicable Law; (ii) other books and records that Seller or any Affiliate of Seller is required by Law to retain; and (ii) any information management system of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return Affiliate of Seller or any of its Affiliates), other than those exclusively related to or exclusively used in the Transferred Books and Records;
(h) all employee and personnel records operation or conduct of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates the Target Business or the Transferred Employees, other than the Transferred Business Employee RecordsPurchased Assets whether or not contained within computer hardware included as a Purchased Asset pursuant to Section 2.1(b);
(i) the sponsorship of, any interest in and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
any owned real property and any leased real property; (j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller under this Agreement (or under any other agreement between Seller, on the one hand, and Buyer, on the other hand, entered into on or after the date of its Affiliates that constitute Excluded Assets or this Agreement); (iik) any Excluded Liability;
interest in any Subsidiary of Seller; and (tl) all assets, properties and rights described on Schedule 2.2(t) to this except as specified in Section 2.1 or in the Intellectual Property License Agreement; and
(u) for the avoidance of doubt, all other assets, properties properties, interests and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, Affiliate that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Purchased Assets).
Appears in 1 contract
Sources: Asset Purchase Agreement (Merit Medical Systems Inc)
Excluded Assets. Notwithstanding Buyer expressly understands and agrees that, notwithstanding anything to the contrary provided in Section 2.1 2.1(b), the following assets, rights and properties of this Agreementthe Asset Sellers (the “Excluded Assets”) shall be retained by Seller Parent, from the Asset Sellers and after their Affiliates (other than the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toBusiness Subsidiaries), and there shall be excluded from the salePurchased Assets:
(i) All cash and cash equivalents, transferincluding all cash and cash equivalents held in or as bank and other depositary accounts and safe deposit boxes, conveyancedemand accounts, assignment and delivery to Purchasercertificates of deposit, time deposits, and the Transferred Assets shall not include the following assetssecurities and brokerage accounts, properties and rights investments (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided Equity Interests), except, in this Agreement and the Ancillary Agreementsany case, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out the extent reflected in the calculation of the Program Business as a result of legal counsel representing Seller, any of its Affiliates Final Cash Amount or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) any fiduciary assets or cash otherwise held on behalf of clients of the portions Business (for the avoidance of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books doubt, the parties acknowledge that the assets and Records or Transferred Business Employee Records) subject cash referred to any such privilege described in this clause (iii) (such documentswill be transferred, the “Privileged Seller Documents”conveyed and delivered to Buyer at Closing);
(cii) Without limiting any rights under Section 2.2, all rights under Contracts that are not Transferred Contracts, including (A) the Contracts listed on Schedule 2.1(c)(ii) (such Contracts, the “Specified Excluded Contracts”), (B) all Excluded ContractsContracts that are not primarily related to the Business, and (C) all of the right, title and interest of Seller Parent and its Affiliates (other than the Business Subsidiaries) in any Multiparty Shared Client Contract;
(diii) Other than the real estate leases listed on Schedule 2.1(b)(iii), (A) all Excluded Tax Assetsof the Asset Sellers’ right, title and interest in owned and leased real property and other interests in real property, and (B) all such right, title and interest under each real property lease, sublease or other Contract pursuant to which any of the Asset Sellers leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, including all improvements, fixtures and appurtenances thereto and rights in respect thereof;
(eiv) all security depositsAll rights to the names “Aon”, “▇▇▇▇▇▇▇ deposits” and any related or similar Trademarks or Domain Names, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller to the extent the same incorporate the name “Aon,” “▇▇▇▇▇▇” or any of its Affiliates for variation thereof, together with any Contracts granting rights, or in which rights are granted, to the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records use the same (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating Intellectual Property to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).the
Appears in 1 contract
Sources: Purchase Agreement (Aon PLC)
Excluded Assets. Notwithstanding anything Other than the Assets being purchased pursuant to the contrary in Section 2.1 of this Agreement1.1, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toPurchasers expressly agree that they are not purchasing or acquiring, and there Sellers are not selling, conveying, transferring, assigning or delivering, any other assets, properties, or rights owned, used or held for use by Sellers, and such properties, rights and assets shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):). For the avoidance of doubt, Excluded Assets include, without limitation:
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-clientAll vessel(s) under construction (together with all parts, work product materials, inventory or similar privilege of Seller components that are a part thereof or any of its Affiliates or otherwise relating are related thereto) pursuant to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (iiA) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇▇ depositsAgreements, bid(B) the NCDOT Contract, leaseand (C) the TXDOT Contract (items (A) - (C), utility collectively, the “Specified Excluded Contracts”); and (ii) any rights under the Specified Excluded Contracts and related agreements entered into by GIS in connection with the construction of the vessels described therein;
(b) All equipment and other depositsassets (including applicable listed scrap material) specifically identified on Schedule 1.2(b) hereto;
(c) All Intellectual Property other than the Purchased IP;
(d) All other intangible assets that are not part of the Business Goodwill, including the names of Sellers, and all other forms telephone and facsimile numbers;
(e) Any rights of deposit placed by Seller Sellers to receive refunds, credits or rebates of Taxes paid with respect to the Assets or the Business with respect to any of its Affiliates for period or portion thereof ending prior to the performance of a Transferred Contract or otherwiseClosing Date;
(f) all cashAll employee benefit plans (including plan assets) maintained by, cash equivalentsor covering employees of, credit cards and bank accounts of Seller or any of its AffiliatesSellers;
(g) All rights of Sellers to causes of action, lawsuits, judgments, claims and demands of any nature accruing before or on the Closing Date and all Books counterclaims, rights of setoff, rights of indemnification and Records (including affirmative defenses to any Tax Return of Seller or any of its Affiliates)claims that may be brought against Sellers by third parties, other than any of the Transferred Books and Recordsforegoing related to the Assets;
(h) All of Sellers’ insurance policies and all employee rights to applicable claims and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordsproceeds thereunder;
(i) All rights and interests of Sellers under all certificates for Sellers’ insurance, binders for insurance policies and insurance policies under which Sellers are or have been insured or under which the sponsorship of, and all assets Business or contracts maintained pursuant to any of the Assets or in connection with, all Seller Benefit Plansthe Assumed Liabilities are or have been insured before or on the Closing Date;
(j) The organizational documents, ledgers and minute books, books of account or other records having to do with the organization of Sellers, all rights employee-related or claims employee benefit-related files or records, and any other books and records which accrue Sellers are prohibited from disclosing or will accrue transferring to Seller or any of its Affiliates Purchasers under this Agreement or any of the Ancillary Agreementsapplicable Law and are required by applicable Law to retain;
(k) All rights with respect to billed accounts receivable that relate to work performed or services provided by the Excluded Prepaid ExpensesSellers prior to the Closing other than any retainage;
(l) all rights, title and interest to real property All privileged attorney-client communications of Seller Sellers or any of its their Affiliates (including all rights, title and interest received or transmitted prior to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;Closing; and
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database All rights, designs, processes, methods claims or causes of action of Sellers under this Agreement and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Acquisition Documents.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gulf Island Fabrication Inc)
Excluded Assets. Notwithstanding anything No security interest is or will be granted pursuant to the contrary this Agreement or any other Security Document in Section 2.1 any right, title or interest of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toany Granting Party under or in, and there shall be excluded from the sale, transfer, conveyance, assignment “Collateral” and delivery to Purchaser, and the Transferred Assets “Pledged Collateral” shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than any interest in leased real property (including Fixtures related thereto) in which a security interest is not perfected by filing a financing statement in the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks applicable Grantor’s jurisdiction of organization (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters or any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementthird party consents);
(b) any fee interest in owned real property (iincluding Fixtures related thereto) any attorney-client, work product or similar privilege if the fair market value of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)fee interest is less than $6.0 million individually;
(c) all Excluded any Contracts, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than Holdings, a Subsidiary of Holdings or an Affiliate of any of the foregoing, (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreements (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreements);
(d) all Excluded Tax Assetsany assets over which the granting of such a security interest in such assets by the applicable Granting Party would be prohibited by any contract permitted under each Credit Agreement, any applicable law, regulation, permit, order or decree or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), or requires a consent of any Governmental Authority that has not been obtained (in each case after giving effect to the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code notwithstanding such prohibitions);
(e) all any assets constituting Security Collateral, to the extent that such security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller interests would result in material adverse tax consequences to Holdings or any one or more of its Affiliates for Subsidiaries as reasonably determined by the performance of a Transferred Contract or otherwiseParent Borrower;
(f) all cashany assets, cash equivalents, credit cards and bank accounts to the extent that the granting or perfecting of Seller a security interest in such assets would result in costs or consequences to Holdings or any of its AffiliatesSubsidiaries as reasonably agreed in writing by the Parent Borrower and the Common Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties;
(g) all Books any (i) Equipment and/or Inventory (and/or related rights and/or assets) that would otherwise be included in the Security Collateral (and Records such Equipment and/or Inventory (including and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such Equipment and/or Inventory (and/or related rights and/or assets) is subject to a Lien permitted by Section 8.2 of each Credit Agreement and designated by the Parent Borrower to the applicable Administrative Agent (but only for so long as such Lien remains in place) and (ii) other property that would otherwise be included in the Security Collateral (and such other property shall not be deemed to constitute a part of the Security Collateral) if such other property is subject to a Permitted Lien described in Section 8.2(h) or Section 8.2(m) (but only with respect to a Lien described in Section 8.2(h)) of each Credit Agreement and designated by the Parent Borrower to the applicable Administrative Agent (but, in each case only for so long as such Liens are in place) and, if such Lien is in respect of Hedging Obligations, such other property consists solely of (x) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (y) any Tax Return of Seller assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (z) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Agreements or (2) any other agreements, instruments or documents related to any Hedging Obligations or to any of its Affiliatesthe assets referred to in any of subclauses (x) through (z) of this clause (ii), other than the Transferred Books and Records;
(h) all employee any property (and/or related rights and/or assets) that (A) would otherwise be included in the Security Collateral (and personnel records such property (and/or related rights and/or assets) shall not be deemed to constitute a part of Seller the Security Collateral) if such property has been sold or otherwise transferred in connection with (i) a Special Purpose Financing (or constitutes the proceeds or products of any property that has been sold or otherwise transferred in connection with a Special Purpose Financing (except as provided in the proviso to this subsection)) or (ii) a sale and leaseback transaction permitted under Section 8.4 of its Affiliates relating each Credit Agreement, or (B) is subject to employees any Permitted Lien and consists of Seller property subject to any such sale and leaseback transaction or general intangibles related thereto (but only for so long as such Liens are in place), provided that, notwithstanding the foregoing, a security interest of the Common Collateral Agent shall attach to any money, securities or other consideration received by any Grantor as consideration for the sale or other disposition of its Affiliates or such property as and to the Transferred Employees, other than the Transferred Business Employee Recordsextent such consideration would otherwise constitute Security Collateral;
(i) Equipment and/or Inventory (and/or related rights and/or assets) subject to any Permitted Lien that secures Indebtedness permitted by each Credit Agreement that is Incurred to finance or refinance such Equipment and/or Inventory and designated by the sponsorship of, and all assets or contracts maintained pursuant Parent Borrower to or the applicable Administrative Agent (but only for so long as such Permitted Lien is in connection with, all Seller Benefit Plansplace);
(j) all rights or claims Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which accrue or will accrue to Seller or any is specifically excluded from the definition of its Affiliates under this Agreement or any Pledged Stock by virtue of the Ancillary Agreementsproviso contained in such definition;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of 1.1 or elsewhere in this Agreement, from the following assets of the Seller are not part of the sale and after the Closingpurchase contemplated hereunder, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be are excluded from the sale, transfer, conveyance, assignment Purchased Assets and delivery to Purchaser, and shall remain the Transferred Assets shall not include property of the following assets, properties and rights (tangible or intangible and wherever located) Seller after the Closing (collectively, the “"Excluded Assets”"):
(a) other than all rights and authorities relating to the Transferred IP Ethereum validator;
(b) all rights and authorities relating to the Gnosis validator;
(c) all rights provided in this Agreement and authorities relating to the Ancillary AgreementsPicasso validator;
(d) all rights and authorities relating to the Eigenlayer operator;
(e) credit agreements, bank agreements, promissory notes, guarantees, letters of credit, letters of guarantee, negotiable instruments, any Intellectual Property, Seller Marks (lease of any property that would be required to be classified and accounted for as a capital lease in accordance with generally accepted accounting principles and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) mortgages and other intellectual property security agreements that create an Encumbrance;
(f) all claims for and rights to receive refund of taxes and other governmental charges relating to the Business for any periods arising prior to the Closing Date;
(g) all claims, actions, deposits, prepayments, refunds, causes of action, rights of recovery, rights of set off, and rights of recoupment of any kind or nature (including any such item relating to taxes) relating to the Purchased Assets arising prior to the Closing Date or relating to the Excluded Assets;
(h) the Purchase Price and all other rights of the Seller under this Agreement, any Transfer Document to which Seller is a party, and its Affiliates, including all Intellectual Property, any other agreements entered into by the Seller Marks or other intellectual property set forth on Schedule 2.2(a) pursuant to this Agreement;
(bi) all contracts with any independent contractors or employees of the Seller prior to the Closing Date;
(ij) all cash and digital assets and/or tokens owned or held by the Seller, other than the ones held in the identity account located in the Public Key described in Section 1.1(a)(i)(A);
(k) all bank accounts or similar accounts of the Seller;
(l) all contracts that are not Assumed Contracts;
(m) all books and records of the Seller, including, without limitation, tax returns relating to the Excluded Assets or Excluded Liabilities, the Seller's governing documents, minute books and company seals of the Seller, and any documentation contained within the Seller's systems that are not used solely in connection with the Business, other than the Business Records;
(n) any of the Seller's employee and personnel records, files, papers, data and related information, including any correspondence related thereto, in whatever form;
(o) any equity interests of the Seller;
(p) all certificates for insurance, binders for insurance policies and insurance, and claims and rights thereunder and proceeds thereof;
(q) all rights to receive mail, email and other communications relating to the Excluded Assets;
(r) any attorney-clientclient privilege and any documents or other information covered by attorney-client privilege, the attorney work product doctrine or other similar privilege of Seller or any of its Affiliates or otherwise relating protection with respect to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements Transfer Document, any other agreement entered into or any Action described by Section 2.2(s)delivered in connection with this Agreement, and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books transactions and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)matters contemplated hereby and thereby;
(cs) all Excluded Contracts;
(d) all Excluded Tax claims of the Seller against third parties relating to the Business or the Purchased Assets;
(e) all security deposits, ▇whether ▇▇▇▇▇▇ depositsor inchoate, bidknown or unknown, lease, utility and other deposits, and all other forms of deposit placed by Seller contingent or non- contingent for any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences period prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded LiabilityDate;
(t) any right to, claim to, or interest in any and all assetsairdrops relating to the Business of any and all digital assets distributed or claimable prior to the Closing Date;
(u) any right to, properties claim to, or interest in the Paladin tokens and rights described on Schedule 2.2(tany and all airdrops relating thereto;
(v) to this Agreementall hardware owned by the Seller other than the Purchased Hardware; and
(uw) for the avoidance of doubt, all any other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, property or interest asset of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Seller that is not a Purchased Asset.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary set forth in Section 2.1 of 2.1(a) or elsewhere in this Agreement, from the Acquiror expressly understands and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include agrees that the following assets, properties properties, leases, rights, interests, Contracts and rights (tangible or intangible claims of the Company and wherever located) its Subsidiaries (collectively, the “Excluded Assets”):) shall be retained by the Company and its Subsidiaries, and shall be excluded from the Transferred Assets:
(ai) (A) except as set forth in Section 2.1(a)(v), all cash and cash equivalents (including marketable securities and short-term investments) held by the Company or any of its Subsidiaries or held by any bank or other than third Person on the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller Company’s and its AffiliatesSubsidiaries’ behalf or for their benefit, including and (B) all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementbank accounts;
(bii) (i) any attorney-client, work product or similar privilege all of Seller the equity interests in the Company or any of its Affiliates or otherwise relating to or arising out of any other Person in which the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller Company or any of its Affiliates holds or owns any equity interests (but not any underlying Transferred Books including Harsco Industrial Air-X-Changers Pty. Ltd.);
(iii) all right, title and Records or Transferred Business Employee Recordsinterest in and to (A) subject to Section 5.15, the Company Marks, and (B) all Intellectual Property and IT Assets other than the Transferred IP;
(iv) all Tax Returns and all claims, refunds, credits or prepayments, in each case, with respect to the Pre-Closing Tax Period in respect of Taxes of the Company or any such privilege described of its Subsidiaries or relating to the operation of the Business or the Transferred Assets;
(v) except for the Assumed Company Plans, all Company Plans and any trusts and other assets related thereto;
(vi) all policies of or agreements for insurance, interests in clause insurance pools and programs and all insurance proceeds received or receivable to the extent arising out of or related to any Excluded Assets or Excluded Liabilities;
(ivii) except as expressly contemplated by Section 2.1(a)(vi), all rights, claims, credits, defenses, causes of action (such including counterclaims) and all other rights to bring any Action at law or in equity relating to any period through or following the Closing to the extent arising out of or relating to any Excluded Asset or Excluded Liability;
(viii) any interest or right of the Company or any of its Subsidiaries under this Agreement and the Ancillary Agreements and any other documents, instruments or certificates executed in connection with this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;
(ix) personnel and employment records for current or former employees and individual independent contractors of the Business, other than the Transferred Employee Records;
(x) all assets, properties, leases, rights, interests, Contracts and claims of the Company or any of its Subsidiaries that are not Related to the Business, wherever located, whether tangible or intangible, real, personal or mixed;
(xi) all assets, properties, leases, rights, interests, Contracts and claims of Harsco Industrial Air-X-Changers Pty. Ltd.;
(xii) inter-company Receivables from the Company or any of its Subsidiaries;
(xiii) except for the Books and Records, (A) all corporate minute books (and other similar corporate or other governance related records) and stock records of the Company or any of its Subsidiaries, (B) any books and records relating to the Excluded Assets or Excluded Liabilities, (C) any books, records or other materials that the Company or any of its Subsidiaries (x) is required by applicable Law to retain (copies of which, to the extent permitted by applicable Law, will be made available to the Acquiror upon the Acquiror’s reasonable request), (y) reasonably believes are necessary to enable the Company or any of its Subsidiaries to prepare and/or file Tax Returns (copies of which, to the extent permitted applicable Law, will be made available to the Acquiror upon the Acquiror’s reasonable request) or (z) is prohibited by applicable Law from delivering or making available to the Acquiror;
(xiv) any interest or right of the Company or any of its Affiliates resulting from the Action disclosed in Section 2.1(b)(xiv) of the Disclosure Schedule (the “Privileged Seller DocumentsRetained Litigation”);
(cxv) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms any assets disposed of deposit placed by Seller the Company or any of its Affiliates for Subsidiaries following the performance date of a Transferred Contract or otherwisethis Agreement to the extent such dispositions are not in violation of this Agreement;
(fxvi) all cash, cash equivalents, credit cards and bank accounts of Seller the rights under Shared Contracts to the extent not transferred to the Acquiror or any of its AffiliatesAffiliates in accordance with Section 5.5;
(gxvii) all Books and Records (including any Tax Return of Seller the rights under the IT Asset Contracts to the extent not transferred to the Acquiror or any of its Affiliates), other than the Transferred Books and Records;; and
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(ixviii) the sponsorship of, and all assets listed or contracts maintained pursuant described on Section 2.1(b)(xvii) of the Disclosure Schedule. Notwithstanding anything to or the contrary set forth in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) , the Excluded Prepaid Expenses;
(l) Acquiror acknowledges and agrees that all rights, title and interest to real of the following shall remain the property of Seller or the Company and its Affiliates, and neither the Acquiror nor any of its Affiliates (including shall have any interest therein: all rights, title records and interest to reports prepared or received by the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy Company or any of its Affiliates in any assetsconnection with the sale of the Business and the transactions contemplated hereby, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior including all analyses relating to the Burgundy Closing shall constitute Excluded Assets)Business or the Acquiror so prepared or received.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in this Agreement, and regardless of whether such asset is disclosed herein or on any Schedule or Exhibit hereto (except solely to the extent constituting the Acquired Assets), Buyer shall not acquire any interest in or to, or any right, title or interest in any assets, properties or rights other than the Acquired Assets (such other assets, properties or rights, whether tangible, intangible, real or personal and wherever located, collectively, the “Excluded Assets”). For the avoidance of doubt, and notwithstanding anything to the contrary in Section 2.1 of this Agreement1.1(a), from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights are Excluded Assets, regardless of whether such assets relate to the Business:
(tangible i) Seller’s rights under or intangible pursuant to this Agreement or any of the Ancillary Documents;
(ii) any right to receive mail and wherever locatedother communications addressed to Seller relating to the Excluded Assets or the Excluded Liabilities (as defined herein);
(iii) all rights of Seller under all Contracts between Seller, on the one hand, and any Affiliate of Seller, on the other hand, and any other Contract listed on Exhibit 1.1(b)(iii) (collectively, the “Excluded AssetsContracts”):);
(aiv) any Intellectual Property Rights other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property;
(v) any Authorizations other than the Transferred Authorizations;
(vi) any equipment, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) systems, hardware, furniture, furnishings, fixtures, machinery, vehicles, tools and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual tangible personal property set forth on Schedule 2.2(aExhibit 1.1(b)(vi) to this Agreement(collectively, the “Excluded Equipment”);
(b) (ivii) any attorneyassets, properties and rights used by Seller or any of its Affiliates primarily in connection with the provision of Overhead and Shared Services, including any proprietary tools and processes;
(viii) all rights to refunds or credits in respect of Taxes arising from ownership, operation or conduct of the Business or the Acquired Assets during any Tax period ending prior to the Closing, during any Pre-clientClosing Tax Period or arising from any payment made directly to any Tax authority by Seller or any of Seller’s Affiliates (such refunds or credits, work product the “Excluded Tax Assets”);
(ix) all books and records not constituting Books and Records that relate primarily to the Business as described in Section 1.1(a)(ii), including any Capital Stock of any Person or any minute books and equity transfer records and similar privilege company records, Tax Returns and other Tax-related documents (other than Tax Returns with respect to Property Taxes), books of account or other records having to do with the corporate organization of Seller or any of its Affiliates or otherwise relating to or arising out the process for the sale of the Program Business as a result of legal counsel representing SellerBusiness, any of its Affiliates all employee-related or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements employee benefit-related files or any Action described by Section 2.2(s), records and (ii) the portions of any documents of all Books and Records that Seller or any of its Affiliates is required to retain by applicable Law (but not including Laws relating to data protection);
(x) any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause insurance policies maintained for the benefit of Seller (i) (such documents, the “Privileged Seller DocumentsInsurance Policies”);
(cxi) all any cause of action, claim, demand, right or privilege against one or more third parties that relates to any of the Excluded ContractsAssets or Excluded Liabilities, including causes of actions, claims and rights under insurance policies relating thereto;
(dxii) all Excluded Tax AssetsEmployee Benefit Plans, including any plans, trusts, Contracts, documents or agreements related thereto, and any retirement and pension plans, and any group medical, dental, life and long-term disability insurance policies maintained by Seller;
(exiii) all security depositsany bank accounts or investment accounts (or the Cash and securities contained therein); and
(xiv) any assets, ▇▇▇▇▇▇▇ depositsproperties and rights not primarily relating to, bid, lease, utility and other deposits, and all other forms of deposit placed or not primarily used or held for use by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Business.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary set forth in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall will not include the following assets, properties and rights (tangible or intangible and wherever located) of Seller (collectively, the “"Excluded Assets”"):
(a) other than the Transferred IP all cash and the rights provided in this Agreement and the Ancillary Agreementscash equivalents, any Intellectual Propertyinvestments (including stock, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) debt instruments, options and other intellectual property instruments and securities), bank deposits, bank accounts, lock boxes and lock box receipts and all certificates of Seller deposit and its Affiliates, including all Intellectual Property, Seller Marks other bank deposits owned or other intellectual property set forth on Schedule 2.2(a) to this Agreementheld by Seller;
(b) the charter (ior comparable) any attorney-clientdocuments of Seller, work product minute books, stock (or similar privilege comparable) ledgers, Tax Returns, personnel and labor files, books of account and other constituent records relating to the organization of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)limited liability company;
(c) all Excluded ContractsIntellectual Property of Seller, and all rights thereunder, remedies against infringements thereof and rights to protection of interests therein under the laws of all jurisdictions, and all tangible or physical materials embodying such Intellectual Property (other than Seller Software described, and contemplated to be sold, transferred or assigned, in Section 2.2(f)), all of which assets, properties and rights of Seller have been transferred to ▇▇▇▇▇ Bahama immediately prior to the execution of this Agreement;
(d) all Excluded Tax rights to causes of action, lawsuits, judgments, claims and demands of any nature, whether arising by way of counterclaim or otherwise in respect of third parties, in each case, to the extent not arising from any of the Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility ownership and other deposits, rights with respect to any Compensation and all other forms of deposit placed Benefit Plan maintained by Seller or and any of its Affiliates for the performance of Employment Document to which Seller is a Transferred Contract or otherwiseparty;
(f) all cashthe rights that accrue to Seller and each of the Members, cash equivalentsrespectively, credit cards under this Agreement and bank accounts of the Seller or any of its AffiliatesAncillary Documents and the Member Ancillary Documents;
(g) all Books prepaid income taxes, all tax receivables and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Recordsdeferred income tax asset;
(h) all employee any rebates and personnel records of Seller or credits and any of its Affiliates relating supplier overcharges except to employees of Seller or any of its Affiliates or the Transferred Employees, other than extent included as an Asset in the Transferred Business Employee RecordsNet Working Capital reflected on the Final Working Capital Schedule;
(i) all insurance policies and workers compensation benefits and other rights (including indemnification, defense, counterclaim or setoff) and claims and recoveries under actual or potential litigation of Seller against third parties to the sponsorship of, and all assets or contracts maintained pursuant extent relating to or in connection with, all Seller Benefit Plans;events prior to the Closing; and
(j) all accounts receivable, inventory and other rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts interests related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect 5200 Products and those accounts receivable due to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)from Sensi USA.
Appears in 1 contract
Sources: Asset Purchase Agreement (Phoenix Footwear Group Inc)
Excluded Assets. Notwithstanding anything to the contrary contained herein, including in Section 2.1 of this Agreementabove, from and after the Closing, Seller and its Affiliates Sellers shall retain all of their respective rightsright, titles title and interests interest in and to, and there shall be excluded from not Transfer to the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible assets of the Sellers or intangible and wherever located) Parent as applicable (collectively, the “"Excluded Assets”"):
(a) other than the Transferred IP all cash, cash equivalents and the marketable securities;
(b) all Contracts that are not Designated Contracts;
(c) all defenses, Claims, counter-Claims, rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) offset and other intellectual property of Seller and its AffiliatesActions against any Person asserting or seeking to enforce any Liability against the Sellers, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to the extent such Liability is not assumed by the Purchaser pursuant to this Agreement;
(b) (id) any attorney-client, work product or similar privilege rights of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by Sellers under this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security depositsany avoidance or similar Actions, ▇▇▇▇▇▇▇ depositsincluding, bidbut not limited to, leaseActions under Sections 544, utility 545, 547, 548, 550 and other deposits, and all other forms 553 of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwiseBankruptcy Code;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller refunds or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or credits arising out of the operation of the Program Business prior to the ClosingClosing Date;
(qg) all Manufacturing Registrationsexcept to the extent a Designated Contract (as defined herein), any assets of any employee benefit plan of any Seller and any rights under any such plan or any contract, agreement or arrangement between any employee or consultant and any Seller;
(rh) all information technology systemsany Books and Records related to the Sellers' employees that are not being hired by Purchaser at or after the Effective Time, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code the Transfer of which would conflict with any confidentiality or object code) privacy obligations of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets)Sellers under applicable law;
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any the capital stock of Sellers or their Subsidiaries, other than the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this AgreementAcquired Stock; and
(uj) for except to the avoidance of doubtextent a Transferred Asset, all other any assets, properties and rights of any Seller or any Parent not used in the operation of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed the Business as it is currently operated by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Sellers.
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions of Section 2.1 or anything to the contrary herein, the following assets, rights and properties of the Seller (collectively, the “Excluded Assets”), shall be retained by the Seller, and Purchaser and its designees shall acquire no right, title or interest in the Excluded Assets in connection with the Transaction:
(a) all (i) cash and cash equivalents, wherever located, including bank balances and bank accounts or safe deposit boxes, monies in the possession of any banks, savings and loans or trust companies and similar cash items, (ii) escrow monies and deposits, including deposits in the possession of landlords and utility companies, (iii) monies held as professional retainers by service providers or in any professional fee escrow and (iv) investment securities and other short- and medium-term investments;
(b) all records, documents or other information solely and exclusively relating to current or former employees of the Seller that are not hired by Purchaser, and any materials to the extent containing information about any employee, disclosure of which would violate Applicable Law or such employee’s reasonable expectation of privacy;
(c) any interest of the Seller under this Agreement or the Related Documents, including, without limitation, the right to receive the Purchase Price and to enforce the Seller’s rights and remedies thereunder, and any interest of the Seller under any agreement providing for the sale of an Excluded Asset;
(d) all Excluded Contracts (including all prepaid assets relating to the Excluded Contracts); provided, however, for avoidance of doubt, that the following shall not be Excluded
(i) the licenses described at Section 2.1(c)(1) and 2.1(c)(2) and (ii) Designated Intellectual Property ownership of which was transferred to Gritstone by an inventor or other prior owner;
(i) any of Seller’s privileges, protections, and immunities for communications, documents, or materials, including without limitation, any attorney-client privilege, work product doctrine, common interest, or joint defense privilege, and electronic and tangible documents reflecting such communications and materials, and (ii) any existing or prior insurance policy and any claims, rights and proceeds under any insurance policies of the Seller, including director and officer, errors and omissions, fiduciary and commercial crime insurance policies;
(f) any net operating losses, Tax assets or Tax attributes, rights of the Seller to Tax refunds or credits for overpayment of Taxes in lieu of a refund attributable to any taxable period (or portion thereof) ending on or before the Closing Date, and Tax Returns, related work papers, Tax information and Tax records of the Seller;
(g) all Permits (including applications therefor and any trade or import/export Permits) that (i) are not Transferred Assets under Section 2.1 or (ii) (x) are not transferable to Purchaser under Applicable Law and (y) are not Designated Patents;
(h) the Excluded Books and Records;
(i) any assets from time to time designated by Purchaser as an Excluded Asset as permitted by Section 2.1 hereof;
(j) the Avoidance Actions;
(k) all of the Seller’s rights, claims or causes of action against any Person (including all guaranties, warranties, indemnities and similar rights in favor of the Seller or any of its Affiliates and including those relating to any of the Excluded Assets or Excluded Liabilities), in each case, whether arising by way of counterclaim or otherwise, and whether arising out of transactions occurring prior to, on or after the Closing Date, provided, however, that, notwithstanding anything herein to the contrary, all of the Seller’s rights, claims or causes of action against any Person in, or relating in any way to, the Designated Intellectual Property, the Designated Contracts, the Permits described in Section 2.1(b), the Samples, the assets listed in Section 2.1(h) and/or the Assumed Liabilities are and shall be Transferred Assets, not Excluded Assets;
(l) all of the Seller’s right, title and interest to any of the assets set forth on Schedule 2.2(l); and
(m) all prepaid expenses, claims, deposits, prepayments, refunds, causes of action, demands, actions, suits, rights of recovery, rights under guarantees, warranties, indemnities and all similar rights against third parties, rights of setoff and rights of recoupment, in each case, to the extent exclusively related to or exclusively used in or held for use for any other Excluded Asset;
(n) any employee benefit plan or asset related thereto; and
(o) any account receivable, note receivable or similar right to receive payment arising out of, relating to or in respect of the operation of Seller prior to the Closing, except to the extent arising under a Designated Contract. Notwithstanding anything to the contrary contained in Section 2.1 this Agreement or any of this Agreementthe other Related Documents, from Purchaser acknowledges and after agrees that all of the Closingfollowing are also Excluded Assets, and all right, title and interest in and to all Excluded Assets shall be retained by the Seller and its Affiliates shall retain all remain the property of their respective rights, titles the Seller (and interests in and to, and there shall expressly be excluded from the sale, transfer, conveyance, assignment and delivery conveyance to PurchaserPurchaser hereunder), and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, neither Purchaser nor any Intellectual Property, Seller Marks (and any social media handles owned by Seller or of its Affiliates that consist of Seller Marksshall have any interest therein: (x) and other intellectual property of Seller and its Affiliatesall records, including all Intellectual Property, Seller Marks reports or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product information prepared or similar privilege of received by the Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this AgreementBankruptcy Case, any the sale of the Ancillary Agreements or any Action described by Section 2.2(s)Business and/or the Transactions, and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related analyses relating to the Business to the extent relating to or arising out Purchaser so prepared or received; and (y) all confidentiality agreements with prospective purchasers of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systemsBusiness, hardware (including all desktopsany Transferred Asset, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller any Excluded Asset or any of its Affiliates portion thereof and all related license, maintenance bids and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any expressions of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)received from third parties with respect thereto.
Appears in 1 contract
Excluded Assets. Notwithstanding anything any provision of this Agreement to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Sale Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”"):
(a) Any and all cash, bank deposits and other cash equivalents, certificates of deposits, marketable securities, cash deposits made by Sellers to secure contract obligations, and all accounts receivable (except in each case to the extent Sellers receive a credit therefor under Section 2.7 and except for rights to receive payments after the date hereof pursuant to the Fox Children's Network Payment Rights);
(b) All rights and claims of any Seller whether mature, contingent or otherwise, against third parties relating to the Assets or the Stations, whether in tort, contract, or otherwise, to the extent arising during and relating to any period prior to the Closing Date;
(c) All prepaid expenses (and rights arising therefrom or related thereto) except to the extent taken into account in determining the Adjustment Amount under Section 2.7;
(d) All Benefit Plans (other than the Transferred IP Assumed Plans);
(e) Any and all claims of any Seller with respect to any Tax refunds;
(f) All of each Seller's rights under or pursuant to this Agreement or any other rights in favor of Sellers pursuant to the other Documents;
(g) All rights to payments made prior to the date hereof pursuant to the Fox Children's Network Payment Rights;
(h) All loan agreements and other instruments evidencing indebtedness for borrowed money;
(i) All contracts of insurance, all coverages and proceeds thereunder and all rights in connection therewith, including, without limitation, rights arising from any refunds due with respect to insurance premium payments to the extent they relate to such insurance policies;
(j) All tangible personal property disposed of or consumed between the date hereof and the rights provided Closing Date in this Agreement accordance with the terms and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist provisions of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(bk) (i) Sellers' corporate minute books, corporate seal, stock transfer records and other corporate records and any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise records relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), Excluded Assets and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), liabilities other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;Assumed Obligations; and
(l) all rights, title The assets listed and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described identified on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets2.2(l).
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Broadcasting Corporation)
Excluded Assets. Notwithstanding anything The Company is not selling, assigning or conveying to the contrary in Section 2.1 of this AgreementPurchaser, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to PurchaserPurchaser is not purchasing, and the Transferred Assets shall not include any of the following assets, rights or properties and rights (tangible relating to the Vending Operations of any kind or intangible and wherever located) (collectivelynature, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-clientbelow, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, whether identifiable or otherwisecontingent, that wherever located, whether or not reflected on the books and records of the Company (collectively, the “Excluded Assets”), which Excluded Assets are set forth below:
(i) cash and cash equivalents, all tax and insurance refunds and all prepaid expenses, refunds, security and like deposits (other than any Cure Deposit), securities, instruments and other investments of the Company which relate to any Excluded Liabilities, and all bank accounts;
(ii) all trade accounts and other accounts receivable of the Company;
(iii) the Retained Contracts;
(iv) the assets set forth on Schedule 1.01(b)(iv) hereof;
(v) all intellectual property used exclusively in the Vending Operations and not specifically addressed by Section 2.1(ain the Business, including (A) through all copyrights, source code and other software exclusive to the Vending Operations and not in the Business, whether domestic or foreign, registered or common law, (oincluding without limitation, all goodwill associated with any of the foregoing, licenses in respect of any of the foregoing, and claims for infringement of or interference with any of the foregoing and the right to recover past damages); (B) all tradenames, tradename rights, trademarks, trademark applications, trademark rights, service marks, service ▇▇▇▇ rights, tradedress, domain names, URLs, web pages, in any case, whether domestic or foreign or registered or common law, listed on Schedule 1.01(b)(v) (it being further understood and agreedincluding without limitation, for the avoidance of doubt, that any right, title, or interest of Burgundy or all goodwill associated with any of its Affiliates the foregoing, licenses in respect of any assetsof the foregoing, properties and rightsclaims for infringement of or interference with any of the foregoing and the right to recover past damages); (C) the invention disclosure, the issued design patent, pending U.S. patent applications and corresponding international and foreign counterpart applications and issued patent listed on Schedule 1.01(b)(v), including any applications, continuation applications, divisional applications, issued patents, reexaminations and reissues thereof, whether domestic or foreign (including without limitation, all goodwill associated with any of whateverthe foregoing, kind licenses in respect of any of the foregoing, and natureclaims for infringement of or interference with any of the foregoing and the right to recover past damages); (D) all confidential information, realtrade secrets, personal designs, specifications, know-how and other proprietary information and technology used exclusively in the Vending Operations and not in the Business; and (E) all intellectual property set forth on Schedule 1.01(b)(v);
(vi) all mailing lists, customer lists, price lists, supplier lists, market studies, training and equipment manuals, business opportunities, and businesses, projects and products planned or mixedunder development or used exclusively in the Vending Operations and not in the Business;
(vii) corporate minute books, tangible stock transfer records and the corporate seal of the Company; and
(viii) all preference or intangibleavoidance claims and actions of the Company, or otherwiseincluding, prior to without limitation, any such claims and actions arising under Sections 544, 545, 547, 548, 549, 550 and 551 of the Burgundy Closing shall constitute Excluded Assets)Bankruptcy Code.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in this Section 2.1 or elsewhere in this Agreement or in any of the other Transaction Documents to the contrary in Section 2.1 contrary, nothing herein shall be deemed to sell, transfer, assign or convey (or require the Sellers to do any of this Agreementthe foregoing as to) the following assets to the Purchaser or any Designated Purchaser, from and after the Closing, Seller and its Affiliates Sellers shall retain all of their respective rights, titles title and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, Purchaser and the Transferred Assets Designated Purchasers shall not include have no rights with respect to, the rights, title and interests of the Sellers in and to, any of the following assets, properties and rights (tangible or intangible and wherever located) assets (collectively, the “Excluded Assets”):
(a) other than cash equivalents, accounts receivable (including intercompany receivables but excluding the Transferred IP CIP Unbilled Accounts Receivable of the Acquired Business as of the Closing Date), bank account balances and all p▇▇▇▇ cash of the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementSellers;
(b) (i) any attorney-clientall rights to Tax refunds, work product Tax credits or similar privilege of Seller or any of its Affiliates or otherwise Tax benefits relating to the Assets or arising out the Acquired Business allocable to a Pre-Closing Taxable Period or to the portion of a Straddle Period ending on and including the Closing Date, except to the extent expressly transferred by this Agreement to the Purchaser or a Designated Purchaser and, for the avoidance of doubt, excluding any such item with respect to Transfer Taxes that are the responsibility of the Program Business as a result of legal counsel representing SellerPurchaser pursuant to Section 6.1, any of its Affiliates or which shall be for the Program Business in connection with the transactions contemplated by this Agreement, any benefit of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Purchaser;
(c) all other than the Assigned Contracts and any other contract rights transferred in connection with the Assets, pursuant to Section 2.1.1, Section 5.13 or Section 5.14(b), any rights of the Sellers under any Contract (including, for the avoidance of doubt, and without limiting any rights under, the Subcontract Agreement, the Non-Assigned Contracts, the Bundled Contracts, the Excluded 365 Customer Contracts, the Excluded Non-365 Customer Contracts and the Seller Insurance Policies (except pursuant to Section 2.1.1(l));
(d) all Excluded Tax Assets;
(e) all any security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder deposits (including, for the avoidance of doubt, any proceeds received with respect Cash Collateral) made by or on behalf of the Sellers (including those relating to Other Contracts that are Assigned Contracts);
(e) the minute books, stock ledgers and Tax records of the Sellers other than the Tax records described in Section 2.1.1(m);
(f) (i) any books, records, files, documentation or sales literature other than the Business Information (subject to clause (iii) of this subsection (f)), (ii) any Employee Records other than those required to be delivered to the Purchaser pursuant to Section 5.6(e) and Article VII and (iii) such portion of the Business Information that the Sellers are required by Law (including Laws relating to privacy but subject to any exemption from those Laws included in the Canadian Approval and Vesting Order or the U.S. Sale Order), in connection with any Action or Claim or by any agreement with a Third Party to retain and/or not to disclose (provided that copies of such policies (other than information shall be provided to the Purchaser to the extent permitted by applicable Law, under the applicable Action or such agreement, but in any event, copies of the Business Information with such sensitive information redacted shall be provided to the Purchaser);
(g) any right to any Intellectual Property (i) of any Seller (including the Sellers’ names) or any Affiliates of any Seller, with the exception of (A) the Transferred Intellectual Property, and (B) Intellectual Property to the extent rights are granted thereto pursuant to the Intellectual Property License Agreement or the Trademark License Agreement, and (ii) of any Third Party, except to the extent licensed under an Assigned Contract or otherwise granted pursuant to Section 5.4(c);
(h) all rights of the Sellers under this Agreement and the other Transaction Documents;
(i) all claims, causes of action and rights of the Sellers or any Subsidiary thereof to the extent relating to any Excluded Liabilities or to any Liabilities for which the Sellers are responsible under this Agreement (including rights of set-off, rights to refunds and rights of recoupment from or against any Third Party but excluding any Acquired Actions);
(j) all of the rights and claims of the U.S. Debtors available to the U.S. Debtors under the U.S. Bankruptcy Code, of whatever kind or nature, as set forth in sections 544 through 551, inclusive, 553, 558 and any other applicable provisions of the U.S. Bankruptcy Code, and any related claims and actions arising under such sections by operation of Law or otherwise, including any and all proceeds of the foregoing but excluding any Acquired Actions;
(k) all records containing personal communications or notes related to the negotiations prepared in connection with the sale of the Assets;
(l) all stock or other equity interests in any Person;
(m) any asset owned by NN Turkey, the LGN Joint Venture or Guangdong - Nortel Telecommunications Equipment Co. Ltd.;
(n) any assets, properties and rights to the extent relating to the Excluded Products and Services (except in all cases as otherwise provided in Section 2.1(m))the Intellectual Property License Agreement);
(o) all insurance proceeds which Seller any refunds due from, or payments due on, claims with the insurers of any Sellers in respect of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences losses arising prior to the Closing (Date, other than to the extent provided as specified in Section 2.1(m)2.1.1(l);
(p) all accounts receivable, notes receivable, rebates receivable and any Equipment other miscellaneous receivables of Seller or any of its Affiliates (i) to than the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;Owned Equipment; and
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (Inventory other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) the Owned Inventory. In addition to the extent relating above, the Sellers, at the Sellers’ sole costs, shall have the right to retain, following the Closing, copies of any book, record, literature, list and any other written or arising out of (i) any of recorded information constituting Business Information to which the other assetsSellers in good faith determine they are reasonably likely to need access for bona fide business or legal purposes, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for including in connection with the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Bankruptcy Proceedings.
Appears in 1 contract
Excluded Assets. Notwithstanding anything The assets that constitute Excluded Assets shall include only:
(i) The consideration delivered to Seller pursuant to this Agreement.
(ii) The assets, properties, rights and contracts owned or held by Seller and not used primarily in connection with the Business.
(iii) Any inventory or other property sold by Seller in the ordinary course of business during the period of time from the date hereof until the Closing Date, to the contrary extent not sold in breach of Section 2.1 of this Agreement5.2.
(iv) All fee interests in real property owned by Seller, from and after the Closingincluding, Seller and its Affiliates shall retain without limitation, all of their respective rights, titles direct or indirect rights and interests in duck club and toranch properties, and there shall be excluded from the saleboat moorings, transfer, conveyance, assignment water companies and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):water rights.
(av) Except as set forth in Section 1.1(a)(xxiii), Seller's insurance policies and related choses in action, rights and interests pursuant to which Seller is insured or is a beneficiary.
(vi) Any automobiles owned by Seller, whether or not used in connection with the Business, other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property those set forth on Schedule 2.2(a) to this Agreement;1.1(a)(iii)
(bvii) (i) any attorney-client, work product or similar privilege Any rights to indemnification in favor of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance Seller's other employees, officers or directors; and except as set forth in Section 1.1(a)(xxiii), any rights of a Transferred Contract Seller to indemnification, recovery, or otherwise;set off of any kind.
(fviii) all cashAll of Seller's rights and interests to any software developed for Seller or the Business by Nth Degree.
(ix) Seller's articles of incorporation, cash equivalentsnon-transferable franchises, credit cards corporate seals, minute books, stock books and bank accounts other corporate records relating to the corporate organization and capitalization of Seller and all income tax records and nontransferable Permits or Permits not relating primarily to the Business.
(x) Any Tax refund.
(xi) All amounts due from ▇▇▇▇▇▇▇▇ or any of its his Affiliates;, to the extent set forth on Schedule 1.1(b)(xi).
(gxii) Cash on hand and in all Books bank accounts and Records cash equivalents.
(including any Tax Return of Seller xiii) Any goods or any of its Affiliatesother assets on consignment or otherwise held for third parties.
(xiv) Except as set forth in Section 1.1(a)(xv), other than the Transferred Books all files and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating that do not relate primarily to employees of Seller or any of its Affiliates or the Transferred Employees, other than Business; provided that Buyer shall receive 6 reasonable access (including after the Transferred Business Employee Records;Closing) to the information therein that pertains to the Business.
(ixv) the sponsorship ofGoods received by or purchased from Seller in barter transactions, and all assets or contracts maintained pursuant to or reflected in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences Seller's barter accounts prior to the Closing Date and distributed to the shareholder of Seller pursuant to Section 6.6.
(xvi) Any awards or mementos received by ▇▇▇▇▇▇▇▇ or any employee of Seller, and any personal office or boardroom furniture or fixtures, including, without limitation, any items set forth on Schedule 1.1(b)(xvi) hereto.
(xvii) Any works of art and antiques (other than those held solely for publication in the Publications or display at Events) owned by Seller, including, without limitation, any items set forth on Schedule 1.1(b)(xvii) hereto.
(xviii) Any Intangible Property described in Section 6.2 hereof.
(xix) ▇▇▇▇▇▇▇▇'▇ single set of bound volumes of back and current issues of each of the Publications.
(xx) Assets and licenses held by, and other rights and interests of, Seller relating solely to the extent provided in Section 2.1(m));production, promotion or distribution of television programs or music which were produced and aired prior to or during 1985.
(pxxi) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables Any Note in favor of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;secured by a mortgage on real property.
(qxxii) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) All club memberships and software (whether hunting licenses held in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Seller's name.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this AgreementClause 2.1, from and after the Closing, Seller and its Affiliates Novartis shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the salenot sell, transfer, conveyance, assignment and delivery or convey to Purchaser, and the Transferred Assets Purchaser shall not include purchase and acquire the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than Subject to the Transferred IP and license rights granted to the rights provided Purchaser in this the License Agreement and the Ancillary AgreementsSupply Agreement, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementthe Licensed Assets;
(b) (i) any attorneythe name “Novartis”, “Ciba-clientGeigy” or “Sandoz”, work product or similar privilege of Seller or any of its Affiliates trademark, service ▇▇▇▇, trade dress, logo, trade name or otherwise relating to corporate name similar or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)related thereto;
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security depositsthe accounts receivable and the accounts payable including accruals, ▇▇▇▇▇▇▇ deposits, bid, lease, utility pre-paid expenses and other deposits, and all other forms any cash or cash equivalents of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller Novartis or any of its Affiliates relating to employees the Business, the Products or the Transferred Assets for the period prior to the Closing Date (“Net Receivables”);
(d) any real property or leaseholds (together with all fixtures and fittings related to any property), physical plant, machinery, equipment, motor vehicles or office equipment;
(e) any rights or assets belonging to the generic business of Seller Sandoz (which is the generic division of Novartis), or any of its Affiliates successors, containing the Drug Substance;
(f) any rights or assets belonging to the Transferred Employeesover the counter business (which is a division of Novartis), other than or any of its successors, containing the Transferred Business Employee RecordsDrug Substance; Pursuant to 17 CFR 240.24b-2, confidential information has been omitted in places marked “* * *” and has been filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Application filed with the Commission.
(g) any rights or assets belonging to the business of Alcon (which is a division of Novartis), or any of its successors, containing any of the Drug Substance;
(h) any rights or assets belonging to Novartis Vaccines and Diagnostics (which is a division of Novartis) or any of its successors, containing the Drug Substance;
(i) any rights or assets outside the sponsorship ofField which shall include, and all assets or contracts maintained pursuant to or for the avoidance of doubt any rights outside the human pharmaceutical field (including but without limitation, the use of the Drug Substance in connection with, all Seller Benefit Plansthe veterinary pharmaceutical field);
(j) all rights any domain names containing the word “Enablex” or claims which accrue “Emselex” followed by a generic top-level domain name or will accrue to Seller or any by a designation of its Affiliates under this Agreement or any of a geographic locations outside the Ancillary AgreementsTerritory and the websites located at such domain names;
(k) subject to section 2.4., any rights for countries outside the Excluded Prepaid ExpensesField and/or Territory for the respective Product;
(l) all rights, title and interest to real property of Seller any rights under Novartis’ insurance policies or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts self insurance which are related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;Business; and
(m) all Swiss Manufacturing Facilities Tangible Personal Property;originals of books and records that Novartis and its Affiliates are required to retain pursuant to any Law; provided however, that (i)Novartis and its Affiliates, as applicable shall provide copies (redacted to the extent necessary to remove any confidential information not related to the Business, Product or Drug Substance in the Territory) of such books and records to the extent related to the Business, Product or Drug Substance in the Territory upon the Purchaser’s reasonable request and (ii) Novartis and its Affiliates, as applicable, may destroy such books and records in accordance with their prevailing records retention procedures to the extent such books and records are no longer required to be retained by Law so long as Novartis and its Affiliates have previously provided copies of such books and records to the Purchaser pursuant to clause (e) of this Clause 2.2(i); and
(n) all insurance policies and rights thereunder any Inventory (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent except as provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of this Agreement and the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Supply Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Asset Purchase Agreement (Merus Labs International Inc.)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement1.1, from and after but subject to Section 1.7, the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from parties agree that the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall exclude any assets of Sellers that are not include expressly designated as Assets pursuant to Section 1.1, which excluded assets of Sellers shall remain the following assets, properties property of Sellers and rights (tangible or intangible and wherever located) shall not be sold to Buyers at the Closing (collectively, the “Excluded Assets”):), including the following Excluded Assets:
(a) The Purchase Price to be paid by Buyers to Sellers pursuant to Section 2.1 and Sellers’ other than the Transferred IP and the rights provided in under this Agreement and the or any Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) All cash or cash equivalents on hand or held in any account of any Seller (iincluding all checking, savings, depository or other accounts), and all bank accounts and escrow accounts of any Seller;
(c) All accounts receivable and notes receivable of any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating related to or arising out of the Program Business as a result of legal counsel representing transactions between any Seller, any of its Affiliates or on the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s)one hand, and (ii) the portions of any documents of other Seller or any subsidiary or Affiliate of its Affiliates any Seller (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, subsidiaries or Affiliates of Sellers are collectively referred to as the “Privileged Seller DocumentsCompanies”);
(c) all Excluded Contracts, on the other hand;
(d) all Excluded Tax AssetsAll stock, membership interests, partnership interests or other ownership interests in Sellers or any Seller Companies (it being understood that the Equity Interests are being conveyed pursuant to the Equity Purchase Agreements);
(e) Except as otherwise provided in Section 1.1(e), all security depositscorporate or other entity-level Records of Sellers or any Seller Companies, ▇▇▇▇▇▇▇ depositsincluding corporate charters, bidqualifications to conduct business as a foreign corporation, leasearrangements with registered agents relating to foreign qualifications, utility taxpayer and other depositsidentification numbers, seals, minute books, stock transfer books, Tax Records, blank stock certificates and all other forms documents relating to the organization, maintenance and existence of deposit placed by Seller Sellers or any Seller Companies other than the Purchased Companies;
(f) Except as otherwise provided in Section 1.1(e), any Records of its Affiliates for Sellers to the performance extent related to any Excluded Assets (other than the Equity Interests) or Excluded Liabilities (including files relating to Taxes and personnel files);
(g) All rights of a Transferred Contract Sellers with respect to any Proceedings, causes of action and claims of every nature, kind and description relating to any Excluded Assets (other than the Equity Interests) and not to any of the Assets, including all rights, claims, liens, rights of setoff, offset or recoupment, defenses, lawsuits, judgments and other claims or demands of any nature against third parties whether liquidated or unliquidated, fixed or contingent or otherwise;
(fh) all cash, cash equivalents, credit cards and bank accounts All rights under any insurance policies of Seller Sellers or any of its Affiliates;
(g) all Books and Records (Seller Companies, including any Tax Return of Seller or cash surrender value under any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordssuch insurance policies;
(i) All claims for any refunds of Taxes and other governmental charges attributable to any period ending on or before the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit PlansClosing Date;
(j) all rights All assets held under any employee benefit plans maintained by or claims which accrue for the benefit of Sellers or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary AgreementsEquity Sellers;
(k) All prior title insurance policies and commitments, deeds and surveys covering any Real Property issued to, on behalf of or for the Excluded Prepaid Expensesbenefit of Seller or any Seller Companies (including the Equity Sellers);
(l) Any computer hardware and software owned or leased by, or licensed to, any Seller that is not listed on Schedule 1.1(f) (including all billing, route management and other software programs other than basic operating systems);
(m) All rights, title and interest to real property of Seller in any financial responsibility, financial assurance or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;mechanisms; and
(n) all insurance policies and rights thereunder (includingSuch other assets of Sellers that are listed on Schedule 1.2(n). Notwithstanding anything to the contrary set forth above, for purposes of Article IX, the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are Equity Interests shall not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to Section 1.1 or any other provision hereof, the contrary Acquired Assets will not in Section 2.1 any event include any of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) Assets of any member of the Seller Group (collectively, the “Excluded Assets”):
(a) other than the Transferred IP all books and the rights provided records not constituting an Acquired Asset described in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its AffiliatesSection 1.1(h), including all Intellectual Propertythe certificate of incorporation, bylaws and similar organizational documents, minutes, stock records and similar documents of any member of the Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementGroup;
(b) all cash, cash equivalents (i) including marketable securities and short-term investments), bank accounts, lockboxes and deposits of, and any attorney-clientrights or interests in, work product or similar privilege the cash management system of Seller or any of its Affiliates or otherwise relating to or arising out member of the Program Business as a result Seller Group, including uncleared checks and drafts received or deposited for the account of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any member of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Group;
(c) all Excluded Contractsrights to and the use of any member of the Seller Group’s trade names and trademarks, any derivation or combination thereof and all associated goodwill, and any other Intellectual Property not specifically described in Section 1.1(e);
(d) all Excluded Tax AssetsContracts between any member of the Seller Group, on the one hand, and any Affiliate of such Person, on the other hand, and all intercompany receivables owed to any member of the Seller Group by any Affiliate of such Person;
(e) all security depositsrights under any Contracts (i) other than the Business Contracts and (ii) related to the purchase of products and services necessary to supply Buyer with the products supplied by Seller under the supply agreement between the Parties contemplated by the PCA (the “Supply Agreement”);
(f) all assets used in connection with the centralized management functions provided by the members of the Seller Group;
(g) all rights to and in Employee Benefit Plans and any trusts, ▇insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of a member of the Seller Group under, any such Employee Benefit Plans;
(h) all insurance policies and all rights of every nature and description under or arising out of such insurance policies;
(i) all claims for and rights to any Tax asset or to receive Tax refunds, or any other Tax attribute, in each case relating to the operation or ownership of the Business or the Acquired Assets for any Tax period (or portion thereof) ending on or prior to the Closing, and all Tax Returns of the Seller Group and related work papers;
(j) except to the extent set forth in Section 1.1(i), all application systems and software, including all computer software, programs and source disks, and related program documentation, tapes, manuals, forms, guides and other materials, computer hardware and other systems hardware and networking and communications assets, including servers, databases, backups and peripherals;
(k) all rights of any member of the Seller Group to owned or leased real estate other than the Lease;
(l) all rights under this Agreement, the PCA, the Supply Agreement, the Development Agreement, the Ancillary Agreements, the other agreements and instruments executed and delivered in connection with this Agreement, and the transactions contemplated hereby or thereby;
(m) all inventory that is not Inventory pursuant to Section 1.1(a), including all inventory not related to the Test;
(n) any claims, course of action, credits, demands or rights of set-off of the members of the Seller Group related to any Excluded Asset or Excluded Liability, as well as any books, records and privileged information relating thereto, whether ▇▇▇▇▇▇ depositsor inchoate, bidknown or unknown, leasecontingent or noncontingent;
(o) any rights under any interest rate, utility currency or other similar hedging or swap agreement;
(p) any personnel and other depositsfiles (i) pertaining to any employee that is not a Transferred Employee and (ii) pertaining to any Transferred Employee or current or former employee of any member of the Seller Group to the extent required by Law not to be transferred; and
(q) the assets, properties and rights set forth on Exhibit 1.2(q). Notwithstanding anything to the contrary contained in this Agreement, the PCA, the Supply Agreement, the Development Agreement or any of the Ancillary Agreements, Buyer acknowledges and agrees that all of the following shall remain the property of the Seller Group, and Buyer shall not have any interest therein: (x) all records and other forms of deposit placed materials prepared or received by Seller or any of its Affiliates for in connection with the performance of a Transferred Contract or otherwise;
transactions contemplated hereby and (fy) all cashprivileged materials, cash equivalents, credit cards documents and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest except to the Swiss Manufacturing Facilities) and all Contracts extent exclusively related to the ownership, lease, sublease, grant, license Assigned Intellectual Property or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Business.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of this Agreement2.1(a), from Purchaser will not purchase, assume or otherwise acquire, and after the Closing, Seller and its Affiliates shall will retain all of their respective the rights, titles title and interests interest in and to, any and there shall be excluded from all assets of Seller and its Affiliates that are not expressly included in the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):), including, by way of example only, the following assets, properties, rights, Contracts and claims, wherever located, whether tangible or intangible, real, personal or mixed:
(a1) all assets, properties, rights, Contracts and claims, including Loans and extensions of credit in process, wherever located, whether tangible or intangible, real, personal or mixed, primarily related to the Retained Business;
(2) other than the Transferred IP Real Property Leases and the rights provided in this Agreement and the Ancillary AgreementsATM Real Property Leases, any Intellectual Propertyall leases, Seller Marks (and any social media handles owned by subleases, licenses or other Contracts pursuant to which Seller or any of its Affiliates that consist leases, subleases or licenses real property;
(3) all Nonperforming Loans and Loans to Retained Employees;
(4) the Excluded Contracts;
(5) all assets related to employee benefit arrangements of Seller Marksor any of its Affiliates, including the Employee Plans;
(6) and other intellectual property all Intellectual Property of Seller and its Affiliates, including all Intellectual Propertyright, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of Seller Marks and its Affiliates, including any rights (ownership, licensed or otherwise) to any of Seller Names and any other intellectual property set forth Trademarks or logos of Seller or its Affiliates, including those identified on Schedule 2.2(a) to this Agreement2.1(b)(6);
(b7) (i) any attorney-clientall books, work product records and other data that cannot, without unreasonable effort or similar privilege of expense, be separated from books and records maintained by Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements Retained Businesses or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are such books, records and other data relate to Excluded Assets, Excluded Liabilities or Banking Center Employees who do not related to the Program Business or (ii) that are related to the Business become Transferred Banking Center Employees, and all personnel files and records; provided that, to the extent relating permitted under, and in accordance with, Section 7.1(b), Seller shall provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause Seller to incur unreasonable effort or arising out of the operation of the Program Business prior to the Closingexpense;
(q) 8) all Manufacturing Registrations;
(r) all information technology systemslicenses, hardware (including all desktopscharters, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) legal entities of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this AgreementAffiliates; and
(u9) for the avoidance of doubt, all other assets, properties assets listed on and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (ooperations described on Schedule 2.1(b)(9) (it being further understood and agreedcollectively, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute “Additional Excluded Assets”).
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Community Bank System Inc)
Excluded Assets. Notwithstanding anything Subject to the contrary in Section 2.1 terms of this Agreement, from each Seller will retain and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and tonot sell or transfer to Buyer, and there shall be excluded from the saleBuyer will not purchase or acquire, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible any asset of such Seller described or intangible and wherever located) set forth below in this Section 1.3 (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreementssuch Seller’s organizational documents, any Intellectual Propertyqualifications to conduct business, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) taxpayer and other intellectual property identification numbers, seals, minute books, stock transfer books, financial records, and other records relating to the corporate organization of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementsuch Seller;
(b) (i) any attorney-clientall cash and cash equivalents, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out other than the Merchant Reserves, on hand in such Seller’s bank accounts as of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s)Closing, and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)bank accounts;
(c) all Excluded Contractsinsurance policies owned by or maintained for the benefit of such Seller or any Principal and all rights to insurance proceeds and claims pursuant to such policies;
(d) all causes of action, lawsuits, judgments, claims, and demands of any nature available to or being pursued by any Seller, whether arising by way of counterclaim or otherwise, to the extent (1) related to any Excluded Tax AssetsAssets or Excluded Liabilities (including in respect of any pre-Closing operation of the Business by Sellers, or any pre-Closing rights or obligations of any Seller or counterparty under any Assumed Contract) or (2) set forth on Section 1.3(d) to the Seller Disclosure Letter;
(e) all security depositsBenefit Plans and assets and rights related thereto;
(f) except, for the avoidance of doubt, for Subagent Relationships, all employment Contracts to which such Seller is a party;
(g) the mobile telephones and associated telephone numbers, e-mail addresses, and other assets listed as Excluded Assets on Section 1.3(g) to the Seller Disclosure Letter;
(h) all rights and obligations of such Seller under this Agreement and the other documents executed and delivered in connection with this Agreement (including the Seller Transaction Documents, and such Seller’s right to the Purchase Price);
(i) such Seller’s right, title, and interest in and to any real property (whether owned or leased);
(j) all Residuals and Ancillary Services Fees related to or arising from the operation of the Business and attributable to transactions having a Processing Date prior to the Effective Time, and all other revenue of Sellers or for the Business to the extent from the operation of the Business or the Purchased Assets prior to the Closing;
(k) all Residuals, Ancillary Service Fees and other revenue and rights related to or arising from the Contracts and merchant portfolios listed as Excluded Assets on Section 1.3(k) to the Seller Disclosure Letter;
(l) all licenses, permits, certificates, and other authorizations and approvals related to the Purchased Assets or the Business and issued by or obtained from a Governmental Authority;
(m) all Excluded NDAs and all attorney-client privileged communications and attorney work product arising from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ deposits, bid, lease, utility LLP’s representation of Sellers and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or Principals in connection withwith the negotiation, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any execution and delivery of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest prior to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal PropertyClosing;
(n) all insurance policies claims for refund of Taxes, estimated taxes, tax pre-payments, and rights thereunder (including, for the avoidance of doubt, tax deposits or any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));tax credits; and
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive the agreements effecting the Principal Guarantor Transfers as described on Section 1.3(o) of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Disclosure Letter.
Appears in 1 contract
Sources: Asset Purchase Agreement (Priority Technology Holdings, Inc.)
Excluded Assets. Notwithstanding the provisions of Section 2.1 or anything to the contrary in Section 2.1 of this Agreementherein, from any and after all assets, title, rights and interest in, to and under the Closing, Seller and its Affiliates shall retain all of their respective rights, titles following assets and interests in and to, and there shall be excluded from of the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) Sellers (collectively, the “Excluded Assets”):) shall be retained by the Sellers, and Purchaser and its designees shall acquire no right, title or interest in the Excluded Assets in connection with the Transaction:
(a) other than all (i) cash and cash equivalents, wherever located, including bank balances and bank accounts or safe deposit boxes, monies in the Transferred IP possession of any banks, checks, funds in time and the rights provided in this Agreement demand deposits, savings and the Ancillary Agreementsloans or trust companies and similar cash items, any Intellectual Property, Seller Marks and (and any social media handles owned by Seller or its Affiliates that consist of Seller Marksii) investment securities and other intellectual property of Seller short- and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementmedium-term investments;
(b) any interest or consideration received by the Sellers or their Affiliates pursuant to, and all rights of the Sellers and their Affiliates under, this Agreement or any Related Document, including the right to receive the Purchase Price and to enforce the Sellers’ rights and remedies thereunder, subject to the terms hereof and thereof;
(c) any (i) any attorneyAttorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), Client Information and (ii) the portions of claims under any documents of Seller or any of its Affiliates (but not any underlying Transferred Books director and Records or Transferred Business Employee Records) subject to any such privilege described in clause officer, errors and omissions, fiduciary and commercial crime insurance policies;
(i) all Tax assets and attributes of the Sellers and their Subsidiaries, (such documentsii) all rights to income Tax refunds or credits of the Sellers and their Subsidiaries, the “Privileged Seller Documents”)and (iii) all rights to Tax refunds or credits with respect to any Excluded Asset or Excluded Liability;
(ce) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards the Excluded Books and bank accounts of Seller or any of its AffiliatesRecords;
(g) all Books and Records (including any Tax Return cash in the Casa Seller’s adequate assurance account relating to utilities under Section 366 of Seller or any of its Affiliates), other than the Transferred Books and RecordsBankruptcy Code;
(h) any and all employee and personnel records of Seller or any of its Affiliates proceeds relating to employees any and all bonds, letters of Seller credit, guarantees or any of its Affiliates or other security provided by the Transferred Employees, other than the Transferred Business Employee RecordsSellers;
(i) any shares or other equity interests in the sponsorship ofSellers, and all assets any of their Subsidiaries or contracts maintained pursuant to any other Person or in connection withany securities of the Sellers, all Seller Benefit Plansany of their Subsidiaries or any other Person;
(j) all rights or claims which accrue or will accrue to Seller (i) Intellectual Property that is listed on Schedule 2.2(j)(i), and (ii) all other Intellectual Property owned by the Sellers or any of its their Affiliates under this Agreement or any of the Ancillary Agreementsthat is not Transferred Intellectual Property (collectively clauses (i) and (ii), “Excluded Intellectual Property”);
(k) any prepayments and good faith and other bid deposits submitted by any third party under the Excluded Prepaid Expensesterms of the Bid Procedure Order;
(l) all of the Sellers’ and their Subsidiaries’ rights, title claims or causes of action against third parties relating to the assets, properties, business or operations of the Sellers or their Subsidiaries (including all guaranties, warranties, indemnities and interest to real property similar rights in favor of Seller the Sellers or any of its Affiliates (including all rights, title and interest their Affiliates) to the Swiss Manufacturing Facilities) and all Contracts related extent relating to the ownershipExcluded Assets or Excluded Liabilities, leasein each case, subleasewhether arising by way of counterclaim or otherwise, grantand whether arising out of transactions occurring prior to, license on or any other similar arrangement with respect to any real propertyafter the Closing Date;
(m) all Swiss Manufacturing Facilities Tangible Personal Propertyrights under the Seller Benefit Plans and any trusts, funding vehicles and other assets related thereto;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m))assets listed on Schedule 2.2(n);
(o) all insurance proceeds which Seller prepaid expenses, claims, deposits, prepayments, refunds, causes of action, demands, actions, suits, rights of recovery, rights under guarantees, warranties (express or any implied), indemnities and all similar rights against third parties, rights of its Affiliates has a right to receive as setoff and rights of the Closing that relate to any eventsrecoupment, circumstances or occurrences prior to the Closing (other than in each case, to the extent provided related to or used in Section 2.1(m));or held with use for the Excluded Assets listed in clauses (a) through (n) above; and
(p) all accounts receivable, notes receivable, rebates receivable records and other miscellaneous receivables of Seller reports prepared or received by the Sellers or any of its their Affiliates (i) to in connection with the extent that they are not related to sale of the Program Business or (ii) that are related and the Transactions, including all analyses relating to the Business or Purchaser so prepared or received. Notwithstanding anything to the extent relating to contrary contained in this Agreement or arising out any of the operation of the Program Business other Related Documents, at any time prior to the Closing;
, Purchaser may, in its sole discretion, (qa) designate any Transferred Asset as an Excluded Asset, and upon such designation such asset will constitute an Excluded Asset for all Manufacturing Registrations;
purposes of this Agreement and any Liabilities associated therewith shall be Excluded Liabilities, and (rb) designate any Transferred Intellectual Property as Purchaser Licensed IP, and upon such designation such Intellectual Property will constitute Licensed IP for all information technology systemspurposes of this Agreement. To the extent Purchaser makes a designation with respect to any asset pursuant to the preceding sentence, hardware the applicable Exhibits and Schedules to this Agreement will be deemed to have automatically been updated (including all desktopswithout action of any Party or Person) to reflect such designation, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related licensePurchaser Licensed IP will be automatically listed in Schedule 7.6. If Purchaser exercises its rights in this paragraph to designate a Transferred Asset as an Excluded Asset or to designate any Transferred Intellectual Property as Purchaser Licensed IP, maintenance then the Parties acknowledge and service Contracts and related documentationagree that there will be no reduction in the Purchase Price as a result of such designation or change in designation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or nor will there be any of its Affiliates (including any Asset Selling Entity) delay to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Closing.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in this Agreement to the contrary in Section 2.1 contrary, Purchasers expressly understand and agree that the following assets, Contracts, rights and properties of Seller and its Affiliates (including, for the avoidance of doubt, those of the Purchased Entities and their respective Subsidiaries) (the “Excluded Assets”) shall be retained by the Seller Group, shall be excluded from the Purchased Assets and may be transferred out of the Purchased Entities and their Subsidiaries prior to the Closing, notwithstanding any other provision of this Agreement:
(a) Any and all legal and beneficial interest in the share capital or equity interest of any Person other than the Purchased Entity Shares and equity interests in the Subsidiaries of the Purchased Entities, from including the equity interests in any New Subsidiaries which constitute Purchased Entities or Subsidiaries thereof;
(b) Any and all owned and leased real property and other interests in real property, other than the Transferred Leases;
(c) Any and all Intellectual Property Rights, other than the Transferred Intellectual Property;
(d) Any and all Technology, other than the Business Technology Deliverables (including, as an Excluded Asset, copies of Business Technology Deliverables that are also used in, held for use in, or necessary for the operation of any Retained Business (the “Retained Technology”));
(e) Any and all Information Technology, other than the Transferred Information Technology;
(f) Any and all Tangible Personal Property, other than the Transferred Tangible Personal Property;
(g) Any and all raw materials, work-in-process, finished goods, supplies and other inventories, other than the Inventory;
(h) Without limiting the provisions of Section 2.11(e) with respect to Shared Contracts, any and all Contracts and portions of Contracts, other than the Specified Business Contracts, the Specified Other Contracts, and the Transferred Leases;
(i) Any and all Permits, other than the Transferred Permits;
(j) Any and all claims and defenses (including any Retained Claim), other than the claims and defenses specifically identified as Purchased Assets in Section 2.4;
(k) Any and all Books and Records not specifically identified as Purchased Assets in Section 2.4(n);
(l) Except as set forth in Article VI, any and all assets of the Seller Benefit Plans;
(m) Subject to Section 5.6, any and all loans and advances, if any, by Seller or any of its Affiliates (other than the Purchased Entities or any of their Subsidiaries) to the Purchased Entities or any of their Subsidiaries;
(n) Any and all prepaid Taxes, refunds, credits, overpayments or similar items or recoveries or other Tax assets or Reliefs (x) of or against Excluded Business Taxes or any other Taxes of Seller or any of its Affiliates, in each case other than any and all prepaid Taxes, refunds, credits, overpayments or similar items or recoveries or other Tax assets or Reliefs of the Purchased Entities or any of their Subsidiaries, or (y) to which the Seller or any of its Affiliates is entitled to pursuant to this Agreement (including, for the avoidance of doubt, pursuant to Section 5.18, Article VI and Article VII (without duplication or double counting);
(o) Tax Returns and other books and records related to Taxes paid or payable by Seller or any of its Affiliates (other than the Purchased Entities and their Subsidiaries);
(p) Any and all Cash Amounts (other than any Cash Amounts of the Purchased Entities and their Subsidiaries as of the Measurement Time), and any and all current assets (other than accounts receivable), prepaid expenses and security deposits (in each case, other than those solely to the extent used or held for use in the Business, any Purchased Entity or any Subsidiary thereof as of the Measurement Time);
(q) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not related to the Business, for all periods before, through and after the Closing, Seller including any and its Affiliates shall retain all of their respective rightsrefunds and credits due or to become due thereunder and subject to Section 5.11 any and all claims, titles rights to make claims and rights to proceeds on any such insurance policies, binders and interests in for all periods before, through and to, and there shall be excluded from after the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementClosing;
(br) (i) any attorney-client, work product or similar privilege All rights to receive payments of Seller or any of its Affiliates pursuant to a hedging or otherwise relating other currency exchange agreement existing before, on or after the Measurement Time (other than any rights to receive payment of any Purchased Entity or arising out Subsidiary thereof pursuant to any such agreement entered into directly by such Purchased Entity or Subsidiary thereof);
(s) Any and all trade receivables and other accounts receivable (other than those constituting Purchased Assets pursuant to Section 2.4(q)); is
(t) Subject to the provisions of Section 5.13, (i) (x) all attorney-client privilege and attorney work-product protection and other applicable privilege or protection of the Program Business Seller Entities associated with the Excluded Assets or the Retained Liabilities, including as related to any Retained Claim, or (y) as a result of legal counsel representing Seller, any of its Affiliates the Seller Entities or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
other Transaction Documents, (k) the Excluded Prepaid Expenses;
(lii) all rightsdocuments, title and interest to real property of Seller communications or any of its Affiliates (including all rights, title and interest information subject to the Swiss Manufacturing Facilitiesattorney-client privilege or work product protection or other applicable privilege or protection described in sub-clause (i) of this paragraph and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received doubt without limiting the Purchased Assets described in clauses (a) through (v) of Section 2.4) all attorney-client privilege and attorney work-product protection and other applicable privilege or protection with respect to any information that is in the possession or control of Seller or its Representatives (provided, that copies of such policies documents set forth in clause (i)(x), to the extent they relate to the Business, the Assumed Liabilities, the Purchased Assets or the Purchased Entities or their Subsidiaries (other than to the extent provided in Section 2.1(m)));
(oa de minimis manner) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are shall not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
pursuant to this clause (t)), and (iii) all assetsrecords and other documents prepared in connection with the Sale Process, properties including bids and rights described on Schedule 2.2(t) to this Agreement; andanalyses received from other Persons;
(u) for the avoidance of doubt, Emails other than as included in Purchased Assets;
(v) Any and all other assets, properties business lines, properties, rights, Contracts and rights claims of Seller or any of its Affiliates, of whatever kind and naturewherever located, whether tangible or intangible, real, personal or mixed, tangible or intangible, or otherwise, that which are not specifically addressed by Purchased Assets; and
(w) The assets set forth on Section 2.1(a2.5(w) through of the Seller Disclosure Schedules. Except as otherwise permitted in Section 5.16 (oand subject to the terms thereof), the Parties acknowledge and agree that neither Purchasers nor any of their Subsidiaries will acquire, and no Purchased Entity or any Subsidiary thereof shall retain after the Closing, any direct or indirect right, title or interest in or to any Excluded Assets. Seller may take at Seller’s sole cost or Liability (and not at the cost of any Purchased Entity that would not be satisfied in full prior to the Closing, including with respect to any consideration) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy cause one or any more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer any Excluded Assets from the Purchased Entities and their Subsidiaries (and, if needed, from the Seller Entities and their Affiliates) to Seller or one or more of its Affiliates for such consideration or for no consideration. After the Closing Date, Purchasers shall take all actions (and shall cause their Affiliates (including the Purchased Entities and their Subsidiaries) to take all actions) reasonably requested by Seller at Seller’s sole cost or Liability (and not at the cost of any Purchased Entity, including with respect to any consideration) to effect the foregoing, including the return of any Excluded Assets for no consideration, but net of any costs or Liabilities incurred by Purchasers or the Purchased Entities in any assetsconnection with such actions to the extent not paid prior thereto by Seller. Any action taken pursuant to this paragraph after the Closing Date, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, no later than 30 days prior to the Burgundy date on which the Post-Closing Statement is delivered in accordance with Section 2.9(c), shall constitute Excluded Assets)be deemed for purposes of calculating the Closing Working Capital, the Closing Cash Amounts, the Closing Indebtedness and the Transaction Expenses pursuant to Section 2.9 to have occurred as of immediately prior to the Measurement Time.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement1.1, from and after but subject to Section 1.7, the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from parties agree that the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall exclude any assets of Sellers that are not include expressly designated as Assets pursuant to Section 1.1, which excluded assets of Sellers shall remain the following assets, properties property of Sellers and rights (tangible or intangible and wherever located) shall not be sold to Buyers at the Closing (collectively, the “Excluded Assets”):), including the following Excluded Assets:
(a) The Purchase Price to be paid by Buyers to Sellers pursuant to Section 2.1 and Sellers’ other than the Transferred IP and the rights provided in under this Agreement and the or any Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) All cash or cash equivalents on hand or held in any account of any Seller (iincluding all checking, savings, depository or other accounts), and all bank accounts and escrow accounts of any Seller;
(c) All accounts receivable and notes receivable of any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating related to or arising out of the Program Business as a result of legal counsel representing transactions between any Seller, any of its Affiliates or on the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s)one hand, and (ii) the portions of any documents of other Seller or any subsidiary or Affiliate of its Affiliates any Seller (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, subsidiaries or Affiliates of Sellers are collectively referred to as the “Privileged Seller DocumentsCompanies”);
(c) all Excluded Contracts, on the other hand;
(d) all Excluded Tax AssetsAll stock, membership interests, partnership interests or other ownership interests in Sellers or any Seller Companies;
(e) Except as otherwise provided in Section 1.1(e), all security depositscorporate or other entity-level Records of Sellers or any Seller Companies, ▇▇▇▇▇▇▇ depositsincluding corporate charters, bidqualifications to conduct business as a foreign corporation, leasearrangements with registered agents relating to foreign qualifications, utility taxpayer and other depositsidentification numbers, seals, minute books, stock transfer books, Tax Records, blank stock certificates and all other forms documents relating to the organization, maintenance and existence of deposit placed by Seller Sellers or any Seller Companies;
(f) Except as otherwise provided in Section 1.1(e), any Records of its Affiliates for Sellers to the performance extent related to any Excluded Assets or Excluded Liabilities (including files relating to Taxes and personnel files);
(g) All rights of a Transferred Contract Sellers with respect to any Proceedings, causes of action and claims of every nature, kind and description relating to any Excluded Assets and not to any of the Assets, including all rights, claims, liens, rights of setoff, offset or recoupment, defenses, lawsuits, judgments and other claims or demands of any nature against third parties whether liquidated or unliquidated, fixed or contingent or otherwise;
(fh) all cash, cash equivalents, credit cards and bank accounts All rights under any insurance policies of Seller Sellers or any of its Affiliates;
(g) all Books and Records (Seller Companies, including any Tax Return of Seller or cash surrender value under any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordssuch insurance policies;
(i) All claims for any refunds of Taxes and other governmental charges attributable to any period ending on or before the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit PlansClosing Date;
(j) all rights All assets held under any employee benefit plans maintained by or claims which accrue or will accrue to Seller or any for the benefit of its Affiliates under this Agreement or any of the Ancillary AgreementsSellers;
(k) All prior title insurance policies and commitments, deeds and surveys covering any Real Property issued to, on behalf of or for the Excluded Prepaid Expensesbenefit of Seller or any Seller Companies;
(l) [RESERVED];
(m) Any computer hardware and software owned or leased by, or licensed to, any Seller that is not listed on Schedule 1.1(f) (including all billing, route management and other software programs other than basic operating systems);
(n) All rights, title and interest to real property of Seller in any financial responsibility, financial assurance or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));mechanisms; and
(o) all insurance proceeds which Seller or any Such other assets of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) Sellers that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described listed on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets1.2(o).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreement, from in no event shall the Sellers be deemed to sell, transfer, assign or convey, and after the Closing, Seller and its Affiliates Sellers shall retain all of their respective rightsright, titles title and interests interest to, in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include under the following assets, properties properties, interests and rights (tangible or intangible and wherever located) of the Sellers (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates all Contracts that consist of Seller Marks) and other intellectual property of Seller and its Affiliatesare not Assigned Contracts, including all Intellectual Property, Seller Marks or other intellectual property Contracts set forth on Schedule 2.2(a1.2(a) to this Agreementof the Disclosure Schedule (the “Non-Assigned Contracts”);
(b) all Documents (whether copies or originals) (i) any attorney-client, work product or similar privilege of Seller or to the extent they relate solely to any of its Affiliates the Excluded Assets or otherwise relating Excluded Liabilities, (ii) that a Seller is required by Law to retain and is prohibited by Law from providing a copy of to the Purchaser or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business (iii) prepared primarily in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)including bids received from other parties;
(c) all Excluded Contracts;
except for (di) all Excluded Tax Assets;
(e) all security deposits, the ▇▇▇▇▇▇▇▇ depositsIslands Equity (ii) the profits interest set forth in Section 1.1(bb) or (iii) any capital stock or other equity interests held, biddirectly or indirectly, leaseby ▇▇▇▇▇▇▇▇ Islands, utility and all shares of capital stock or other depositsequity interests of the Sellers or securities convertible into, and all exchangeable or exercisable for any such shares of capital stock or other forms of deposit placed by Seller or equity interests;
(i) any of its Affiliates for the performance Sellers’ director and officer insurance policies, fiduciary policies or employment practices policies (in each case of a Transferred Contract the foregoing, including any tail policies or otherwisecoverage thereon) and (ii) the insurance policies set forth on Schedule 1.2(d)(ii) of the Disclosure Schedule (the “Excluded Policies”), any of the Seller’s rights, claims, demands, proceedings, credits, causes of action or rights of set off thereunder and any letters of credit related to the Excluded Policies;
(e) [Reserved];
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or claims that the Sellers may have against any of its AffiliatesPerson solely with respect to any Excluded Assets;
(g) all Books the Sellers’ rights under this Agreement and Records (including any Tax Return of Seller or any of its Affiliates), the other than the Transferred Books and Records;Transaction Documents; and
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(iplans set forth on Schedule 1.2(h) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
Disclosure Schedule (k) the “Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded AssetsPlans”).
Appears in 1 contract
Sources: Asset Purchase Agreement (Ambassadors International Inc)
Excluded Assets. Notwithstanding anything any provision of this Agreement to the contrary in Section 2.1 contrary, the Assets of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets each Transferring Party shall not include the following assets, properties and rights assets or property (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”"):
(a) Any and all cash, bank deposits and other cash equivalents, certificates of deposit, securities, cash deposits made on behalf of any Station of the Transferring Party to secure contract obligations (except to the extent the Transferring Party receives a credit therefor in determining the Adjustment Amount under Section 2.7), and all accounts receivable (other than non-cash receivables under Trade Agreements of the Transferred IP and Transferring Party) for services performed or for goods sold or delivered by any Station of the rights provided in this Agreement and Transferring Party prior to the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementClosing Date;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out All rights and claims of the Program Business as a result of legal counsel representing SellerTransferring Party whether mature, any of its Affiliates contingent or the Program Business in connection otherwise, against third parties with the transactions contemplated by this Agreementrespect to, any or which are made under or pursuant to, other Excluded Assets of the Ancillary Agreements Transferring Party or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest relate to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business period prior to the Closing;
(qc) all Manufacturing RegistrationsAll prepaid expenses of the Transferring Party (and rights arising therefrom or related thereto) except to the extent the Transferring Party is given a credit therefor in determining the Adjustment Amount under Section 2.7;
(rd) all information technology systems, hardware All Benefit Plans of the Transferring Party;
(including all desktops, smartphones, tablets, laptops, printers, fax/scan machinese) All Tax Returns (and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentationsupporting materials), and all related technologyclaims of the Transferring Party with respect to any Tax refunds, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets)relating to any Station of the Transferring Party;
(sf) all Actions available All of the Transferring Party's rights under or pursuant to this Agreement or being pursued by Seller the TBA, or any other rights in favor of its Affiliates the Transferring Party pursuant to the other Documents;
(including g) All loan agreements, letters of credit and other instruments evidencing indebtedness for borrowed money;
(h) All contracts of insurance, all coverages and proceeds thereunder and all rights in connection therewith, including, without limitation, rights arising from any Asset Selling Entity) refunds due with respect to insurance premium payments to the extent relating they relate to or arising out of such insurance policies;
(i) any All tangible personal property disposed of or consumed between the other assets, properties or rights date hereof and the Closing Date in accordance with and pursuant to the terms and provisions of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liabilitythis Agreement;
(tj) all assetsThe Transferring Party's corporate minute books, properties ownership transfer records and rights described on Schedule 2.2(t) other entity records, and any records relating to this Agreement; andother Excluded Assets of the Transferring Party and to Liabilities of the Transferring Party other than the Recipient Party's Assumed Obligations;
(uk) for In the avoidance case of doubtthe Emmis Assets, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded names "Sinc▇▇▇▇," "Sinc▇▇▇▇ ▇▇▇adcast Group," "Sinc▇▇▇▇ ▇▇▇munications," "Emmis" and any logo or variation thereof and goodwill associated therewith; and in the case of the Bonneville Assets)., all rights to the name "Bonneville" and any logo or variation thereof and goodwill associated therewith;
Appears in 1 contract
Sources: Asset Exchange Agreement (Emmis Communications Corp)
Excluded Assets. Notwithstanding anything herein contained to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closing, each Seller shall retain, and its Affiliates Buyer shall retain all of their respective rightsnot purchase, titles such Seller’s right, title and interests interest in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, (and the Transferred Purchased Assets shall not include any of) the following assets, assets and properties and rights (tangible or intangible and wherever located) of the Sellers (collectively, the “Excluded Assets”):), all of which shall remain the exclusive property of the Sellers:
(a) any Contract other than (i) any Assumed Contract or (ii) any Contract otherwise included as a Purchased Asset under Section 2.1(h), Section 2.1(k), or Section 2.1(o) (collectively, the Transferred IP “Excluded Contracts”);
(b) any Contract or arrangement (including any loan or similar arrangement) with or binding upon any of the Sellers and any Related Party, except as set forth on Schedule 2.3(i);
(c) any intercompany accounts receivable owed between or among the Sellers;
(d) all rights provided in of the Sellers under this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (agreements and any social media handles owned instruments delivered to the Sellers by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) Buyer pursuant to this Agreement;
(be) all Documents (i) any attorney-client, work product or similar privilege of Seller or to the extent they relate to any of its Affiliates the Excluded Assets or otherwise relating Excluded Liabilities (including information stored on the computer systems, data networks or servers of any Seller); (ii) that are minute books, organizational documents, stock registers and such other books and records of any Seller as pertaining to ownership, organization or arising out existence of the Program Business as a result of legal counsel representing such Seller, Tax Returns (and any related work papers), corporate seal, checkbooks, and canceled checks; (iii) prepared by or on behalf of its Affiliates or the Program Business Sellers in connection with this Agreement or the transactions contemplated by this Agreement, any of Transactions or related to the Ancillary Agreements Cases or any Action described other Excluded Asset; (iv) that any Seller is required by Section 2.2(s)Law to retain; or (v) that are governed under GDPR or collected from natural persons with addresses in the European Union or European Economic Area; provided that, and (ii) to the portions extent not prohibited by applicable Law, Buyer shall have the right to make copies of any documents portions or all of Seller or any of its Affiliates such Documents (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documentscollectively, the “Privileged Seller Excluded Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts Equity Interests of Seller or any of its Affiliatesthe Sellers;
(g) the Sellers’ directors and officers liability insurance policies, if any, and all Books rights and Records (benefits of any nature of Sellers with respect thereto, including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books all insurance recoveries thereunder and Recordsrights to assert claims with respect to such insurance recoveries;
(h) all employee and personnel records of Seller assets owned or any of its Affiliates relating to employees of Seller or any of its Affiliates or used by the Transferred Employees, other than the Transferred Business Employee RecordsSellers that are specifically identified in Schedule 2.2(h);
(i) the sponsorship of, and all assets of the Sellers that would otherwise constitute a Purchased Asset (if owned immediately prior to the Closing) if conveyed or contracts maintained pursuant to otherwise disposed of during the period from the date hereof until the Closing Date (i) at the direction of the Bankruptcy Court, (ii) as not prohibited by the terms of the DIP Documents, or (iii) in connection with, all Seller Benefit Plansthe Ordinary Course of Business;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary AgreementsPermits other than those set forth on Schedule 2.1(j) and those Permits that are not transferable;
(k) the Excluded Prepaid Expensessponsorship of all Benefit Plans that are not Assumed Benefit Plans and all right, title and interest in any asset thereof or relating thereto;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts rights related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real propertymatters set forth on Schedule 2.1(s);
(m) all Swiss Manufacturing Facilities Tangible Personal Property;Excluded Avoidance Actions and all of the rights, claims or causes of action of the Sellers of any kind, including those available under the Bankruptcy Code, against any officer, director, employee, manager or Affiliate of, or lender to, any Seller or any of their respective Affiliates (and the proceeds of any insurance policies related to such rights, claims or causes of action) arising at any time period prior to the Closing; and
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Cash.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in this Agreement to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closing, Seller Guarantor and its Affiliates Subsidiaries shall retain all of their respective rightsretain, titles and interests the Transferee shall not acquire, any direct or indirect right, title and interest in and to, any assets, properties, claims and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and rights of Guarantor or its Subsidiaries other than the Transferred Assets shall not include the following (all such assets, properties properties, claims and rights (tangible or intangible and wherever located) (rights, collectively, the “Excluded Assets”):), including, for the avoidance of doubt:
(a) any refunds, credits, overpayments or other than recoveries of, against or in respect of any Taxes imposed on or with respect to the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorneyAssets for a Pre-client, work product or similar privilege of Seller Closing Tax Period or any Taxes of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller imposed on Transferor or any of its Affiliates;
(gb) all Books Tax Returns and Records (including any Tax Return of Seller other books and records related to Taxes paid or payable by Transferor or any of its Affiliates);
(c) any Contracts, other than the Transferred Books Contracts (including the portion of Shared Contracts not required to be or otherwise not assigned, transferred and Recordsconveyed to Transferee);
(d) any accounts receivable or other receivables;
(e) any Information Technology or other tangible personal property other than the Transferred Tangible Personal Property and Transferred Software;
(f) any Intellectual Property Rights other than Transferred IP Rights;
(g) any data other than database schema, or database structures, included in the Transferred Software;
(h) all employee any Software that is not Transferred Software (it being understood that Guarantor and personnel records its Subsidiaries may retain copies of Seller or any of its Affiliates relating such Transferred Software solely to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordsextent that it is licensed pursuant to Section 5.13 hereof);
(i) all indemnity rights and other claims and actions arising out of occurrences before or after the sponsorship ofClosing to the extent primarily arising out of or that primarily relate to any of the Excluded Assets or Retained Liabilities, and all assets whether arising by way of counterclaim or contracts maintained pursuant to or in connection with, all Seller Benefit Plansotherwise;
(j) all rights or claims which that accrue or will accrue to Seller or any of its Affiliates Transferor under this Agreement or any of the Ancillary Agreements;other Transaction Document; and
(k) the Excluded Prepaid Expenses;
(l) all rightsany assets, title and interest to real property properties, claims or rights of Seller any operations, functions or businesses of Guarantor or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than Subsidiaries to the extent provided not involved in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Mortgage Servicing Platform.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.01(a) to the contrary in Section 2.1 of this Agreementcontrary, from and after the Closing, Seller and its Affiliates Buyer shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchasernot purchase, and the Transferred Assets shall not include include, any right, title and interest in or to any of the following assets, properties and rights assets (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”"):
(ai) all cash and cash equivalents, securities (other than the Transferred IP Interests) and negotiable instruments on hand, in lock boxes, in financial institutions or elsewhere, including any cash residing in any collateral cash account securing any obligation or contingent obligation;
(ii) all intercompany receivables between Parent and any of its Affiliates, or between any Affiliate of Parent and any other Affiliate of Parent, all accounts, notes and other receivables resulting from sales prior to the rights provided Closing Date by Parent or its Affiliates of products to the extent generated by the Businesses, whether current or non-current;
(iii) except as otherwise expressly set forth in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements including in Section 2.01(a) hereof, the ownership right in any property or any Action described by Section 2.2(sasset (other than Intellectual Property), and including Contracts, that is used in the Businesses, but is used primarily in businesses of Parent other than the Businesses (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”a "Shared Asset(s)");
(civ) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility real property of Parent and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller Parent's or any of its Affiliates' right, title and interest as a tenant or otherwise and the Real Property contemplated to be leased to Buyer under the Lease Agreement), other than the Transferred Books and RecordsOwned Business Real Property;
(hv) the EVAR Business, the PCBA Business, the Peripheral Intervention Business, the Embolic Beads Business and all other businesses of Parent and its Affiliates other than the Businesses (collectively, the "Excluded Businesses");
(vi) subject to Section 5.06(c) and any license granted in accordance therewith, the Licensed Marks;
(vii) all employee rights or interests of a Transferred Subsidiary in, and personnel records of Seller all assets of, any Parent Plans;
(viii) the Parent Retained Intellectual Property;
(ix) all Parent's and its Affiliates' investments in, or joint ventures or any other partnerships with, other third-party businesses (equity, debt or otherwise), whether or not related to the Businesses (collectively, "Parent Investments"), including those listed on Section 2.01(c)(ix) of the Seller Disclosure Schedule;
(x) all rights of Parent and its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, (other than the Transferred Business Employee Records;
(iSubsidiaries) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates arising under this Agreement or any from the consummation of the Ancillary Agreementstransactions contemplated hereby;
(kxi) any claim, right or interest of the Excluded Prepaid Expenses;Parent and any Transferred Subsidiary in or to any refund, credit or other recovery for Taxes with respect to any Pre-Closing Tax Period; and
(lxii) all rightsany right, title and interest in or to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assetsassets including Contracts related thereto, properties or rights listed on Section 2.01(c)(xii) of the Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Disclosure Schedule.
Appears in 1 contract
Excluded Assets. Notwithstanding anything contained in this Agreement (including Section 2.01 ) to the contrary and except to the extent of rights expressly provided in Section 2.1 certain Transaction Agreements, neither Seller nor any of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rightsis selling, titles and interests in and totransferring, conveying or delivering (or causing to be sold, transferred, conveyed or delivered), and there shall be excluded from the salePurchaser is not purchasing, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assuming or accepting any assets, properties properties, rights and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege contracts of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing SellerAffiliates, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s)interests therein, other than the Transferred Assets (all such assets, properties, rights and (ii) the portions of any documents contracts of Seller or any of its Affiliates (but not Affiliates, or any underlying interests therein, other than the Transferred Books and Records or Transferred Business Employee Records) subject Assets being referred to any such privilege described in clause (i) (such documents, herein as the “Privileged Seller DocumentsExcluded Assets”);. Without limiting the generality of the foregoing, all of the following shall constitute Excluded Assets:
(ca) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility cash and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards including checking accounts, bank accounts, certificates of deposit and bank accounts securities, of Seller or any of its Affiliates;
(gb) all Books intercompany receivables and Records other amounts due from Seller or its Affiliates;
(including c) all contracts to which Seller or any Tax Return of Seller Affiliate thereof is a party or is otherwise bound other than the Assigned Contracts;
(d) any real estate leases, real estate title, or any installations, fixtures, and other improvements at Seller’s or any of its Affiliates)’ leased real estate, whether or not used for the benefit of the Business, in each case other than the Transferred Books and RecordsAssigned Lease or as contemplated by Section 2.01(g);
(he) all employee furniture, fixtures, equipment (including computer hardware), machinery and personnel records other tangible personal property of Seller or any of its Affiliates relating to employees that are not listed on Schedule II(c);
(f) all Permits of Seller or its Affiliates;
(g) Seller’s or any of its Affiliates’ rights under any policies of insurance or any benefits, proceeds, or premium refunds payable or paid thereunder or with respect thereto;
(h) all rights of Seller or any of its Affiliates to file for or receive any refunds, credits or similar benefits for Taxes levied and imposed upon, or in connection with, the Transferred Assets or the Transferred Employees, other than conduct or operation of the Transferred Business Employee Recordsallocable to any Pre-Closing Period or to the portion of the Straddle Period ending on the Closing Date;
(i) the sponsorship of, Excluded Books and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit PlansRecords;
(j) all rights or claims which accrue or will accrue to of Seller or any of its Affiliates under this Agreement or any of the Ancillary Transaction Agreements;
(k) all rights of Seller or any of its Affiliates to indemnification from any Person with respect to any of the Excluded Prepaid ExpensesLiabilities;
(l) all rights, title and interest prepaid Taxes allocable to real property of taxable periods or portions thereof ending on or before the Closing Date;
(m) all Intellectual Property owned by Seller or any of its Affiliates (including all rights, title rights in and interest to the Swiss Manufacturing Facilities) and all Contracts related to Seller Trademarks), other than the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Transferred Intellectual Property;
(n) all insurance policies and rights thereunder (includingIntellectual Property licensed to Seller or any of its Affiliates, for the avoidance of doubt, any proceeds received with respect to any such policies (other than Intellectual Property licensed pursuant to the extent provided in Section 2.1(m)))an Assigned Contract;
(o) all insurance proceeds which Seller of Seller’s or any of its Affiliates has a right to receive as of the Closing that relate to any eventsAffiliates’ e-mail addresses, circumstances or occurrences prior to the Closing (URLs, websites, website content, and telephone numbers, other than to the extent provided in as contemplated by Section 2.1(m)2.01(h);
(p) all bank accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to lockboxes used in the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the ClosingBusiness;
(q) all Manufacturing Registrationsassets in respect of any Employee Benefit Plan;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentationassets arising out of, and all related technologyany associated claims arising out of, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets)the Excluded Liabilities;
(s) all Actions available to any legal or being pursued beneficial interest in the capital stock and other equity interests of Seller or its Affiliates;
(t) the accounts and notes receivable not included in the Transferred Assets;
(u) any assets transferred or otherwise disposed of by Seller or any of its Affiliates (including other than any Asset Selling Entityintercompany transfers or sales) in compliance with Section 5.01(a) prior to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded LiabilityClosing;
(tv) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of accounting systems owned or used by Seller or any of its Affiliates, whether or not used in connection with the operation of whatever kind the Business, including those that comprise the Shared Service Functions and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed Assets;
(w) any assets utilized by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy Seller or any of its Affiliates in any assetsconnection with businesses other than the Business, properties including those that comprise the Shared Service Functions and rights, of whatever, kind Assets; and
(x) the Shared Service Functions and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Excluded Assets. Notwithstanding anything No security interest is or will be granted pursuant to the contrary this Agreement or any other Security Document in Section 2.1 any right, title or interest of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and toany Grantor under or in, and there shall be excluded from the sale, transfer, conveyance, assignment “Collateral” and delivery to Purchaser, and the Transferred Assets “Pledged Collateral” shall not include (the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than the Transferred IP and the rights provided any interest in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks leased real property (including Fixtures) (and any social media handles owned by Seller there shall be no requirement to deliver landlord lien waivers, estoppels or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreementcollateral access letters);
(b) any fee interest in owned real property (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”including Fixtures);
(c) all Excluded any Instruments, Contracts, Chattel Paper, General Intangibles, Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with, or issued by, Persons other than Holdings, a Subsidiary of Holdings or an Affiliate thereof (collectively, “Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Restrictive Agreement (in each case, except to the extent that, pursuant to the Code or other applicable law, the granting of security interests therein can be made without resulting in a breach, default or termination of such Restrictive Agreement);
(d) all Excluded Tax Assetsany assets over which the granting of such a security interest in such assets by the applicable Grantor would be prohibited by any contract permitted under the Credit Agreement (provided such contract was not entered into in contemplation thereof), applicable law, regulation, permit, order or decree or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), or requires a consent (to the extent that, with respect to any assets that would otherwise constitute Collateral, any applicable Grantor has sought such consent using commercially reasonable efforts) of any Governmental Authority that has not been obtained (in each case after giving effect to the applicable anti-assignment provisions of the Code to the extent that the assignment of which is expressly deemed effective under the Code notwithstanding such prohibition);
(e) all any assets to the extent that such security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility interests would result in material adverse tax consequences to Holdings and other deposits, and all other forms of deposit placed its Subsidiaries as reasonably determined by Seller Holdings (it being understood that the Lenders shall not require Holdings or any of its Affiliates for Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law except as required under the performance of a Transferred Contract or otherwiseLoan Documents);
(f) all cash, cash equivalents, credit cards and bank accounts any assets to the extent that the granting or perfecting of Seller a security interest in such assets would result in costs or consequences to Holdings or any of its AffiliatesSubsidiaries as reasonably agreed in writing after the date hereof by Holdings and the Agent that are excessive in view of the benefits that would be obtained by the Secured Parties;
(g) all Books any (i) Equipment and/or Inventory (and/or related rights and/or assets) that would otherwise be included in the Security Collateral (and Records such Equipment and/or Inventory (including and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such Equipment and/or Inventory (and/or related rights and/or assets) is subject to a Lien permitted by Section 8.2 of the Credit Agreement and (ii) other property that would otherwise be included in the Security Collateral (and such other property shall not be deemed to constitute a part of the Security Collateral) if such other property is subject to a Permitted Lien described in Section 8.2(n) or 8.2(r) of the Credit Agreement (but, in each case, only for so long as such Liens are in place) and, if such Lien is in respect of a Hedge Agreement, such other property consists solely of (x) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (y) any Tax Return of Seller assets relating to such assets, proceeds, dividends or distributions or to obligations under any Hedge Agreement, and/or (z) any other assets consisting of, relating to or arising under or in connection with (1) any Hedge Agreements or (2) any other agreements, instruments or documents related to any Hedge Agreement or to any of its Affiliatesthe assets referred to in any of subclauses (x) through (z) of this clause (ii), other than the Transferred Books and Records;
(h) all employee any property (and/or related rights and/or assets) that (A) would otherwise be included in the Security Collateral (and personnel records such property (and/or related rights and/or assets) shall not be deemed to constitute a part of Seller the Security Collateral) if such property has been sold or otherwise transferred in connection with (i) a Franchise Financing Disposition or Securitization Transaction (or constitutes the proceeds or products of any property that has been sold or otherwise transferred in connection with a Franchise Financing Disposition or Securitization Transaction (except as provided in the proviso to this subsection)) or (ii) a Sale and Leaseback Transaction permitted under the Credit Agreement, or (B) is subject to any Permitted Lien and consists of its Affiliates relating property subject to employees any such Sale and Leaseback Transaction or general intangibles related thereto (but only for so long as such Liens are in place), provided that, notwithstanding the foregoing, a security interest of Seller the Agent shall attach to any money, securities or other consideration received by any Grantor as consideration for the sale or other disposition of its Affiliates or such property as and to the Transferred Employees, other than the Transferred Business Employee Recordsextent such consideration would otherwise constitute Security Collateral;
(i) Equipment and/or Inventory (and/or related rights and/or assets) subject to any Permitted Lien that secures Indebtedness permitted by the sponsorship of, and all assets Credit Agreement that is incurred to finance or contracts maintained pursuant to or refinance such Equipment and/or Inventory (but only for so long as such Permitted Lien is in connection with, all Seller Benefit Plansplace);
(j) all rights or claims without duplication, any Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which accrue or will accrue to Seller or any is specifically excluded from the definition of its Affiliates under this Agreement or any Pledged Stock by virtue of the Ancillary Agreementsproviso contained in such definition;
(k) any Capital Stock and other securities of a Restricted Subsidiary of Holdings to the Excluded Prepaid Expensesextent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in Holdings or any of its Restricted Subsidiaries being required to file separate financial statements for such Restricted Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to such requirement;
(l) all rightsany assets covered by a Certificate of Title, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest except to the Swiss Manufacturing Facilitiesextent such assets constitute Eligible Service Vehicles or Eligible Rental Equipment, in each case by operation of clause (f) of the definitions of each such term in the Credit Agreement, and all Contracts related to are included in the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real propertyBorrowing Base;
(m) all Swiss Manufacturing Facilities Tangible Personal Propertyany aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part of any of the foregoing;
(n) all insurance policies and rights thereunder Letter-of-Credit Rights individually with a value of less than $10,000,000;
(including, o) for the avoidance of doubt, any proceeds received Deposit Account and any Money, cash, checks, other negotiable instrument, funds and other evidence of payment therein held by any “qualified intermediary” in connection with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m))Like-Find Exchange;
(p) all accounts receivableany Money, notes receivablecash, rebates receivable checks, other negotiable instrument, funds and other miscellaneous receivables evidence of Seller payment held in any Deposit Account of Holdings or any of its Affiliates (i) Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of Holdings or any of its Subsidiaries, which must be held for or returned to the extent that they are not related applicable counterparty under applicable law or pursuant to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closingcontractual obligations;
(q) all Manufacturing Registrationsany property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property is subject to other Liens permitted by Section 8.2(kk) of the Credit Agreement to the extent that such assets are not required to constitute “Collateral” under the Credit Agreement;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);Foreign Intellectual Property; and
(s) all Actions available to or being pursued any Goods in which a security interest is not perfected by Seller or any filing a financing statement in the office of its Affiliates the Secretary of State of the applicable Grantor’s location (including any Asset Selling Entity) as determined by Section 9-307 of the Code), except to the extent relating to such Goods constitute Eligible Service Vehicles or arising out Eligible Rental Equipment, in each case by operation of clause (if) any of the other assetsdefinition of such term in the Credit Agreement, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for are included in the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Borrowing Base.
Appears in 1 contract
Sources: u.s. Guarantee and Collateral Agreement (Herc Holdings Inc)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreementcontained herein, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Station Assets shall not include the following assetsassets or any rights, properties title and rights interest therein (tangible or intangible and wherever located) (collectively, the “"Excluded Assets”"):
(a) other than the Transferred IP all cash and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist cash equivalents of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementSellers;
(b) Sellers' corporate and trade names and intangible property not exclusive to the operation of the Stations (i) including the names "Urban One", "Radio One", and any attorney-clientderivations or variations thereof), work product or similar privilege of Seller or any of its Affiliates or otherwise charter documents, and books and records relating to the organization, existence or arising out ownership of Sellers, duplicate copies of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any records of the Ancillary Agreements or any Action described by Section 2.2(s)Stations, and (ii) all records not relating to the portions operation of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Stations;
(c) all Excluded Contractscontracts of insurance, all coverages and proceeds thereunder and all rights in connection therewith, including without limitation rights arising from any refunds due with respect to insurance premium payments to the extent related to such insurance policies;
(d) all Excluded Tax Assetspension, profit sharing plans and trusts and the assets thereof and any other employee benefit plan or arrangement and the assets thereof, if any, maintained by Sellers;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility the Stations' accounts receivable and any other deposits, and all other forms rights to payment of deposit placed by Seller cash consideration for goods or services sold or provided prior to the Adjustment Time (defined below) or otherwise arising during or attributable to any of its Affiliates for period prior to the performance of a Transferred Contract or otherwiseAdjustment Time (the "A/R");
(f) all cash, cash equivalents, credit cards any non-transferable shrink-wrapped computer software and bank accounts any other non-transferable computer licenses that are not material to the operation of Seller or any of its Affiliatesthe Stations;
(g) all Books rights and Records (including claims of Sellers, whether mature, contingent or otherwise, against third parties with respect to the Stations and the Station Assets, to the extent arising during or attributable to any Tax Return of Seller or any of its Affiliates), other than period prior to the Transferred Books and RecordsAdjustment Time;
(h) all employee deposits and personnel records of Seller prepaid expenses (and rights arising therefrom or any of its Affiliates relating related thereto), except to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Recordsextent Sellers receive a credit therefor under Section 1.8;
(i) operating systems and related assets that are used in the sponsorship of, and all assets operation of multiple stations or contracts maintained pursuant to or in connection with, all Seller Benefit Plansother business units;
(j) the lease for Stations' studio site and all rights equipment located therein, other than any listed on Schedule 1.1(b), and any other assets used or claims which accrue held for use in the operation of any other radio station owned or will accrue to Seller operated by Sellers or an affiliate of Sellers, except for any of its Affiliates under this Agreement or any of such items that are specifically set forth as included in the Ancillary Agreements;Station Assets on the Schedules hereto; and
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, assets that are not specifically addressed by Section 2.1(a) through (o) (it being further understood used primarily in the business and agreed, for operations of the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties Stations and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)assets listed on Schedule 1.2.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary The Purchased Assets shall exclude any and all assets or properties that are not set forth in Section 2.1 of this Agreement, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser2.1, and the Transferred Assets shall not include the following assets, items (all such excluded assets and properties and rights (tangible or intangible and wherever located) (collectively, being the “Excluded Assets”):
2.2.1 All cash on hand and cash equivalents, including bank accounts, money market funds, marketable securities and temporary cash investments, to the extent not included in the Accounts Amount.
2.2.2 Claims, demands, causes of action, choses in action, rights of recovery, rights of set-off, rights to refunds and similar rights in favor of the Sellers or any Affiliate of the Sellers of any kind to the extent (a) relating to the Excluded Assets or the Retained Liabilities or identified on Schedule 2.2.2 or (b) relating to the ownership of the Purchased Assets, or operation of the Business, prior to the Effective Time.
2.2.3 All Excluded Intellectual Property.
2.2.4 All Excluded IT Equipment.
2.2.5 All Excluded Wilmington Calciner Contracts.
2.2.6 To the extent not included in the Accounts Amount, all of the Sellers’ and any of their Affiliates’ right, title and interest in and to all accounts receivable (including payments for all finished and unfinished products which are en route to any customer of the Business (including any Affiliates of the Sellers) where title has passed to the customer), exchange balances and all notes, bonds, and other evidences of indebtedness of and rights to receive payments arising out of sales, services, rentals and other activities of the Business occurring in connection with and attributable to the ownership or operation of the Purchased Assets or the Business prior to the Effective Time and the security arrangements, if any, related thereto, including any rights with respect to any Third Party collection procedures or any other actions or proceedings in connection therewith.
2.2.7 All of the Sellers’ rights or obligations relating to the Business arising under any outstanding receivable or payable, note or loan (including any intercompany accounts) between any Seller, on the one hand, and any other Seller or Affiliate of a Seller, on the other hand.
2.2.8 Subject to Article 6, Section 7.2 and the Technology Agreement, those Contracts and Permits relating exclusively to the ownership or operation of the Purchased Assets or the Business as currently operated by the Sellers that are not transferrable as a result of a failure to obtain consent, or other similar required condition (including any waiver of any right of first refusal, right of first offer, or other similar preemeptive right) to effect the assignment to and assumption by the Buyer and every Contract and Permit, which by its own terms, cannot be transferred or conveyed to the Buyer (provided that the foregoing shall neither relieve Sellers nor Buyer of their respective obligations under Section 7.2).
2.2.9 All Contracts and Permits of any Sellers or any Affiliate of any Sellers that may be used in the Business but that do not relate exclusively to the Purchased Assets or to the Business as conducted prior to the Effective Time by the Sellers or their Affiliates, including the National Multi-Site Contracts.
2.2.10 Any real property fee interest, lease, license, easement, franchise, right-of-way or such other ownership, leasehold, access or occupancy right in real estate (including constituent) that is not transferrable as a result of a failure to obtain consent or other similar required condition (including any waiver of any right of first refusal, right of first offer, or other similar preemeptive right) to effect the assignment to and assumption by the Buyer (provided that the foregoing shall neither relieve Sellers nor Buyer of their respective obligations under Section 7.2 or Section 7.9).
2.2.11 All rights or claims by any Sellers or any Affiliate of any Sellers to any Tax refund relating to the Business covering or relating to the period prior to the Effective Time.
2.2.12 All assets related to the Seller Plans.
2.2.13 Subject to Article 16, all rights, titles, claims and interests of any Sellers or any Affiliate of any Sellers relating to operations associated with the Business as conducted prior to the Effective Time (i) under any policy or agreement of insurance, (ii) under any bond, (iii) to or under any condemnation damages or awards in regard to any Taking with respect to the Purchased Assets, or (iv) to any insurance or bond proceeds.
2.2.14 All feedstocks, blendstocks and products that are used or produced by the Facilities that are in transit on the Closing Date, except to the extent they are included in Hydrocarbon Inventory.
2.2.15 Subject to Section 7.8, guaranties, indemnities, surety bonds, letters of credit, or other credit support or financial assurances issued or provided by any Sellers or any Affiliate of any Sellers with respect to the conduct of the Business prior to the Effective Time.
2.2.16 All books and records other than the Transferred IP Books and Records.
2.2.17 All right, title and interest in the ▇▇ ▇▇▇▇▇ and any licenses or other rights provided to use, display or otherwise exploit the ▇▇ ▇▇▇▇▇.
2.2.18 All right, title and interest in the ampm Marks, and any licenses or other rights to use, display or otherwise exploit the ampm Marks, except as otherwise may be granted to the Buyer pursuant to the Master Franchise Agreement.
2.2.19 All rights of the Sellers or their Affiliates under or pursuant to this Agreement and the Ancillary AgreementsOther Agreements and transactions contemplated hereby.
2.2.20 All intercompany debt between the Sellers or their Affiliates and the ▇▇▇▇▇▇ ▇▇▇▇▇ Company (which will be settled prior to Closing).
2.2.21 Any ▇▇▇▇▇▇ Land Company Settlement Fund Claims.
2.2.22 The Excluded ARCO Retail Network.
2.2.23 All Excluded Thrifty Agreements and all Excluded Thrifty Sites.
2.2.24 All Non-BFO Facilities, other than the Included Fuel Retail Sites in Escrow.
2.2.25 All Excluded Retail Fuel and Convenience Marketing Contracts.
2.2.26 All rights, titles, claims and interests of the Sellers or any Intellectual PropertyAffiliate of the Sellers in and to any Excluded Environmental Credits.
2.2.27 Any title to or ownership rights with respect to assets, Seller Marks (and any social media handles property improvements, appurtenances, fixtures, equipment or goods located at the Real Property Interests which are not owned by Seller Sellers or its Affiliates that consist any of Seller Marks) and other intellectual property of Seller and its their Affiliates, including all Intellectual Property, Seller Marks equipment owned by contractors or other intellectual property set forth Third Parties, spare parts on Schedule 2.2(a) consignment, chemicals on consignment, and leased and rented equipment, vehicles and other leased items.
2.2.28 All rights of Sellers and their Affiliates in and to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise the Environmental Control Bonds relating to or arising out of the Program Business Refinery Business.
2.2.29 All rights and obligations related to that certain Office Lease dated November 1, 1993, as a result of legal counsel representing Selleramended from time to time, any of its Affiliates or including most recently on November 6, 2009, between BPCNAI and The Realty Associates Fund IX, L.P. for the Program Business space in connection with the transactions contemplated by this Agreementbuildings located at 4 and ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ deposits▇▇▇▇.
2.2.30 Other assets, bidif any, lease, utility identified by category on Schedule 2.2.30. Except with regard to Sellers’ Standards and any other deposits, and all other forms of deposit placed by Seller Excluded Assets licensed or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating otherwise to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant be provided to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates Buyer under this Agreement or any of the Ancillary Other Agreements;
(k) , the Sellers may remove at any time or from time to time, any and all of the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates Assets (including all rightsthose Excluded Assets that the Sellers reasonably determine are the subject of Section 12.1.2) from the Facilities (at the Sellers’ expense, title and interest but without charge by the Buyer for storage). Furthermore, the Sellers agree to use Reasonable Efforts to have the Swiss Manufacturing FacilitiesExcluded Assets (including those Excluded Assets that the Sellers reasonably determine are the subject of Section 12.1.2) and all Contracts related to owned by the ownership, lease, sublease, grant, license Sellers or any other similar arrangement their Affiliates removed from the Facilities within one hundred eighty (180) days following the Closing Date. The Sellers agree that they will consult with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance Buyer in advance of doubt, any proceeds received with respect to taking any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of actions following the Closing Date and the Parties shall adopt a mutually agreeable plan for such removal so that relate to any events, circumstances these actions will not unduly or occurrences prior to unreasonably disrupt the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the normal operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Business.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of 2.01 or elsewhere in this Agreement, from nothing in this Agreement shall constitute or be construed as conferring on Transferee, and after the ClosingTransferee is not acquiring, Seller any right, title or interest in and to (i) any properties, assets, business, operation, or division of Transferor or any of its Affiliates shall retain all (other than Transferee) not expressly set forth in Section 2.01 or (ii) the specific assets of their respective rightsTransferor set forth below that may be associated with the Transferred Assets, titles and interests in and to, and there shall be but which are specifically excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) transfer contemplated hereunder (collectively, the “Excluded Assets”):). Such assets, properties and rights are excluded from the Transferred Assets and shall remain the property of Transferor after the Closing:
(a) the Transferor’s real property and interests in real property, other than the Transferred IP portion thereof comprised of the Real Property, the Leased Real Property and the rights provided in this Agreement Easements and Rights of Way to be conveyed by the Deeds, the Assignment of Leased Real Property and the Ancillary Agreements, any Intellectual Assignments of Easements and Rights of Way (the “Transferor’s Retained Real Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement”);
(b) (i) any attorney-clientall cash, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Sellercash equivalents, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreementbank deposits, any of the Ancillary Agreements or any Action described by Section 2.2(s)deferred fuel, deferred capacity, Ohio compliance renewable energy credits, unamortized credit line fees, and (ii) any receivables related to income Taxes attributable to the portions income of any documents of Seller or any of its Affiliates (Transferor but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject only to the extent any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)receivables are not a Deferred Tax Asset;
(c) all Excluded Contractsminute books, stock transfer books, corporate seals and other corporate records;
(d) all Excluded Tax Assetscertificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness (excluding the Debt);
(e) except to the extent otherwise described in the Transferred Assets, all security depositstariffs, ▇▇▇▇▇▇▇ deposits, bid, lease, utility agreements and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates arrangements to which Transferor is a party for the performance purchase or sale of a electric capacity and/or energy or for the purchase or sale of transmission or ancillary services involving the Transferred Contract Assets or otherwise;
(f) all cash, cash equivalents, credit cards other assets and bank accounts of Seller properties owned by Transferor or any of its AffiliatesAffiliates (other than Transferee) that do not constitute, are not used in connection with or are not ancillary to the ownership or operation of the Transferred Assets;
(g) all Books the electrical transmission, substation, control and Records (including any Tax Return support facilities on the transmission side of Seller or any of its Affiliates), other than the Transferred Books appropriate and Recordsdesignated interconnection points;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsTransferor’s electric distribution assets;
(i) the sponsorship of, and all other assets or contracts maintained pursuant to or described in connection with, all Seller Benefit Plans;Schedule 2.02(i); and
(j) all the rights or claims which accrue or will accrue to Seller or any of its Affiliates Transferor under this Agreement or any of and the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets).
Appears in 1 contract
Sources: Asset Contribution Agreement (Dayton Power & Light Co)
Excluded Assets. Notwithstanding anything to the contrary in Section 2.1 of this Agreementforegoing, from and after the Closing, Seller and its Affiliates shall retain all of their respective rights, titles and interests in and to, and there shall be excluded from the sale, transfer, conveyance, assignment and delivery to Purchaser, and the Transferred Purchased Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):
(a) other than all rights of the Transferred IP Operating Companies, the ESOP, the ESOP Trust, and the rights provided in ESOP Trustee under this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this AgreementOperative Documents;
(b) (i) any attorney-client, work product or similar privilege all Excess Cash of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”)Jamestown;
(c) all Excluded ContractsCash and Cash Equivalents at the Operating Companies;
(d) all Excluded Tax Assetsrights, assets, interests and obligations under the Plans except as otherwise provided in Section 7.13 hereof;
(e) all security depositspersonnel, employment, and benefit records that relate to any former employee of an Operating Company that is not a Transferred Employee;
(f) all insurance policies to which any Company is a party that are not expressly assumed by Buyer;
(g) any insurance claims or rights to unpaid insurance proceeds;
(h) any Contract with any of ▇▇▇▇▇▇▇ deposits▇▇▇▇▇▇▇, bidthe ESOP, leasethe ESOP Trust, utility and other depositsthe ESOP Trustee, and all other forms of deposit placed by Seller or any Affiliate of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates)same, other than (i) the Transferred Books Leases and Records;
(hii) all employee the existing employment agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to be modified and personnel records of Seller or any of its Affiliates relating assigned pursuant to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee RecordsSection 8.1(v) hereof;
(i) the sponsorship ofcorporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, blank stock certificates, issued and outstanding stock, and all assets other documents relating to the organization, maintenance, existence and ownership of any Operating Company or contracts maintained pursuant to or in connection with, all Seller Benefit PlansDefunct Subsidiary;
(j) all rights any obligation of an Operating Company or claims which accrue or will accrue to Seller or Defunct Subsidiary in connection with the dissolution of any of its Affiliates under this Agreement or any of the Ancillary Agreementssuch Defunct Subsidiary;
(k) any Contract other than the Excluded Prepaid Expenses;Assumed Contracts; and
(l) all rightsany security deposits held by vendors or landlords under the Assumed Contracts, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive any reimbursement for operating expenses paid by the Operating Companies in connection with Leases, unless such security deposit or right is included as of an asset in calculating the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t) all assets, properties and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance of doubt, all other assets, properties and rights of Seller or any of its Affiliates, of whatever kind and nature, real, personal or mixed, tangible or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for the avoidance of doubt, that any right, title, or interest of Burgundy or any of its Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute Excluded Assets)Net Operating Working Capital.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained in Section 2.1 of this Agreement2.1(a), from Purchaser will not purchase, assume or otherwise acquire, and after the Closing, Seller Entities and its their respective Affiliates shall will retain all of their respective the rights, titles title and interests interest in and to, any and there shall be excluded from all assets of the sale, transfer, conveyance, assignment Seller Entities and delivery to Purchaser, and their respective Affiliates that are not included in the Transferred Purchased Assets shall not include the following assets, properties and rights (tangible or intangible and wherever located) (collectively, the “Excluded Assets”):), including, by way of example only, the following assets, properties, rights, Contracts and claims, wherever located, whether tangible or intangible, real, personal or mixed:
(a) other than the Transferred IP and the rights provided in this Agreement and the Ancillary Agreements, any Intellectual Property, Seller Marks (and any social media handles owned by Seller or its Affiliates that consist of Seller Marks) and other intellectual property of Seller and its Affiliates, including all Intellectual Property, Seller Marks or other intellectual property set forth on Schedule 2.2(a) to this Agreement;
(b) (i) any attorney-client, work product or similar privilege of Seller or any of its Affiliates or otherwise relating to or arising out of the Program Business as a result of legal counsel representing Seller, any of its Affiliates or the Program Business in connection with the transactions contemplated by this Agreement, any of the Ancillary Agreements or any Action described by Section 2.2(s), and (ii) the portions of any documents of Seller or any of its Affiliates (but not any underlying Transferred Books and Records or Transferred Business Employee Records) subject to any such privilege described in clause (i) (such documents, the “Privileged Seller Documents”);
(c) all Excluded Contracts;
(d) all Excluded Tax Assets;
(e) all security deposits, ▇▇▇▇▇▇▇ deposits, bid, lease, utility and other deposits, and all other forms of deposit placed by Seller or any of its Affiliates for the performance of a Transferred Contract or otherwise;
(f) all cash, cash equivalents, credit cards and bank accounts of Seller or any of its Affiliates;
(g) all Books and Records (including any Tax Return of Seller or any of its Affiliates), other than the Transferred Books and Records;
(h) all employee and personnel records of Seller or any of its Affiliates relating to employees of Seller or any of its Affiliates or the Transferred Employees, other than the Transferred Business Employee Records;
(i) the sponsorship of, and all assets or contracts maintained pursuant to or in connection with, all Seller Benefit Plans;
(j) all rights or claims which accrue or will accrue to Seller or any of its Affiliates under this Agreement or any of the Ancillary Agreements;
(k) the Excluded Prepaid Expenses;
(l) all rights, title and interest to real property of Seller or any of its Affiliates (including all rights, title and interest to the Swiss Manufacturing Facilities) and all Contracts related to the ownership, lease, sublease, grant, license or any other similar arrangement with respect to any real property;
(m) all Swiss Manufacturing Facilities Tangible Personal Property;
(n) all insurance policies and rights thereunder (including, for the avoidance of doubt, any proceeds received with respect to any such policies (other than to the extent provided in Section 2.1(m)));
(o) all insurance proceeds which Seller or any of its Affiliates has a right to receive as of the Closing that relate to any events, circumstances or occurrences prior to the Closing (other than to the extent provided in Section 2.1(m));
(p) all accounts receivable, notes receivable, rebates receivable and other miscellaneous receivables of Seller or any of its Affiliates (i) to the extent that they are not related to the Program Business or (ii) that are related to the Business to the extent relating to or arising out of the operation of the Program Business prior to the Closing;
(q) all Manufacturing Registrations;
(r) all information technology systems, hardware (including all desktops, smartphones, tablets, laptops, printers, fax/scan machines) and software (whether in source code or object code) of Seller or any of its Affiliates and all related license, maintenance and service Contracts and related documentation, and all related technology, data, databases, database rights, designs, processes, methods and other know-how (other than Transferred Assets);
(s) all Actions available to or being pursued by Seller or any of its Affiliates (including any Asset Selling Entity) to the extent relating to or arising out of (i) any of the other assets, properties or rights of Seller or any of its Affiliates that constitute Excluded Assets or (ii) any Excluded Liability;
(t1) all assets, properties properties, rights, Contracts and rights described on Schedule 2.2(t) to this Agreement; and
(u) for the avoidance claims, including Loans and extensions of doubtcredit in process, all other assetswherever located, properties and rights of Seller whether tangible or any of its Affiliates, of whatever kind and natureintangible, real, personal or mixed, tangible primarily related to the Retained Businesses;
(2) other than the Real Property Leases and ATM Real Property Leases, all leases, subleases, licenses or intangible, or otherwise, that are not specifically addressed by Section 2.1(a) through (o) (it being further understood and agreed, for other Contracts pursuant to which the avoidance of doubt, that any right, title, or interest of Burgundy Seller Entities or any of its their respective Affiliates leases, subleases or licenses real property;
(3) all Nonperforming Loans, Loans to Retained Employees and Mortgage Loans guaranteed by the Veterans’ Administration or the Federal Housing Administration;
(4) the Excluded Contracts and the One HSBC Center Lease;
(5) all assets related to employee benefit arrangements of any Seller Entity or any of their respective Affiliates, including the Employee Plans;
(6) all Intellectual Property of the Seller Entities and their respective Affiliates, including all right, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of the Seller Entities and their respective Affiliates, including any rights (ownership, licensed or otherwise) to any of the Seller Entity Names and any other Trademarks of Seller Entities or their respective Affiliates, including those identified on Schedule 2.1(b)(6);
(7) all books, records and other data that cannot, without unreasonable effort or expense, be separated from books and records maintained by the Seller Entities or their respective Affiliates in any assets, properties and rights, of whatever, kind and nature, real, personal connection with the Retained Businesses or mixed, tangible or intangible, or otherwise, prior to the Burgundy Closing shall constitute extent that such books, records and other data relate to Excluded Assets, Excluded Liabilities or Business Employees or Affiliated Employees who do not become Transferred Business Employees, and all personnel files and records; provided that, to the extent permitted under, and in accordance with, Section 7.1(b), the Seller Entities shall provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause the Seller Entities to incur unreasonable effort or expense;
(8) all licenses, charters, and legal entities of the Seller Entities or their respective Affiliates;
(9) the Retained In-Process Loans;
(10) the Excluded Credit Card Accounts and Receivables;
(11) the Restricted Items; and
(12) the Letters of Credit.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First Niagara Financial Group Inc)