Purchase and Sale of Assets and Assumption of Liabilities. 1.01 On the terms and subject to the conditions set forth in this Agreement, Seller hereby agrees to sell, transfer, convey, assign and deliver to Buyer, and Buyer hereby agrees to purchase from Seller at the closing, as that term is defined in Section 3 hereof (the “Closing”), all the property of Seller as set forth below, free and clear of all liens, encumbrances and restrictions, except as specifically agreed to herein, all of which are collectively referred to hereinafter as the “Assets”: (a) The specific commercial loans, lines of credit, installment loans and other loans and loan commitments carried on the books of the Seller, at par, plus accrued interest thereon to the Closing Date, and listed on Exhibit “A” hereto, provided however, that Buyer may elect to designate specific commercial loans, lines of credit, installment loans and/or other loans and loan commitments carried on the books of the Seller as “Reserve Loans” provided that Buyer provides written notice to Seller not less than ten (10) business days prior to the Closing Date and such Reserve Loans shall then be subject to the provisions of Section 2.03 hereof; and (b) The specific furniture, fixtures, and equipment, at net book value and in an as-is, where-is condition, listed on Exhibit “B” hereto; and (c) All claims and causes of action the Seller has or might have against any third party arising out of, in connection with or with respect to, the Assets or the Liabilities; and (d) All of Seller’s interest in the computer software, computer programs and software licenses used by Seller in connection with the CF Business, and all copyrights, servicemarks, trademarks, trade names, trade secrets, licenses, royalty rights and proprietary rights of Seller as used in the CF Business (the “Software and Intangible Property”); (e) All telephone numbers used in Seller’s CF Business (the “Telephone Numbers”); (f) All customer lists of every kind and nature whatsoever of the Seller, whether held by Seller, Seller’s officers, directors and/or employees; (g) All of Seller’s right, title and interest in and to that certain lease by and between Seller and CA-Santa M▇▇▇▇▇ Business Park-American Golf Limited Partnership, a Delaware limited partnership and S▇▇▇▇▇▇-Partners Livermore, LTD., a California limited Partnership (collectively the “Santa M▇▇▇▇▇ Landlord”) dated June 29, 1994, as amended (the “Santa M▇▇▇▇▇ Lease”), a copy of which is attached hereto as Exhibit “C-1” regarding that certain real property commonly known as 2▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Santa M▇▇▇▇▇ Premises”) together with the security deposit paid to the Santa M▇▇▇▇▇ Landlord and any and all deposits to providers of utilities of Seller in the Santa M▇▇▇▇▇ Premises as set forth on Exhibit “C-2” hereto (the “Security Deposits”); (h) All of Seller’s right, title and interest in and to that certain service agreement by and between Seller and Vision Offices(the “Arizona Landlord”) dated January 1, 2003, as amended (the “Arizona Lease”), a copy of which is attached hereto as Exhibit “C-3” regarding that certain real property commonly known as 1▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Arizona Premises”) together with the security deposit paid to the Arizona Landlord and any and all deposits to providers of utilities of Seller in the Arizona Premises as set forth on Exhibit “C-2” hereto; (i) All of the goodwill of Seller and Seller’s CF Business (the “Goodwill”); and (j) Except as set forth on Exhibit “D”, all books, records, manuals, documents, files, reports, studies, instruments and other materials of Seller relating to the Software and Intangible Property, the Telephone Numbers, Customer List, Santa M▇▇▇▇▇ Lease, Arizona Lease, Personal Property, Security Deposits, Goodwill and all other Assets set forth above. (k) All cash and monies held in the W▇▇▇▇ Fargo Foothill (“WFF”) cash collateral accounts in the name of Seller. 1.02 The parties hereto hereby acknowledge and agree that Buyer is not purchasing any other asset of Seller except as set forth in Section 1.01 hereof, including but not limited to those assets of Seller set forth on Exhibit “D” hereof (“Retained Assets”). 1.03 On the terms and subject to the conditions set forth in this Agreement from and after the Closing, Buyer shall assume and be liable to pay, discharge and perform when due (i) all obligations of Seller under the Santa M▇▇▇▇▇ Lease and the Arizona Lease and all obligations which arise in connection with other Assets provided that such obligations arise or accrue after the Closing, (ii) all obligations of Seller under the vendor contracts as set forth on Exhibit “E” hereto (the “Vendor Contracts”) arising from and after the Closing and (iii) all amounts of principal and interest outstanding on Seller’s lines of credit # CCR000 and CCR001 with WFF as of the Closing (“W▇▇▇▇ Debt”), all of which are collectively referred to as the “Liabilities.” 1.04 Seller hereby represents and warrants to and agrees with Buyer that Buyer shall not assume or become responsible, as a result of this Agreement, for any liabilities of Seller, whether known or unknown, disclosed or undisclosed, contingent or otherwise, which have arisen or may arise or be established in connection with Seller’s conduct of the CF Business, other than those specifically assumed in Section 1.03 hereof. Particularly, but without limitation, Buyer shall not assume: (a) Any liability arising out of any claims of employees employed by Seller or any independent contractors or agents or other parties making claims for bonuses, salaries, or other payments or benefits from Seller arising out of, relating to, or resulting from their respective employment or other relationship with Seller; (b) Any liability of Seller, or any of its officers, directors, or employees in connection with any income or franchise taxes, sales tax, depreciation recapture and investment recapture obligations and any expenses including expenses for professional fees incurred by Seller in connection with the negotiations, preparation, execution, delivery and performance of this Agreement; or (c) Any other duty, obligation or liability of Seller arising out of, resulting from, or relating to the operation of Seller or its CF Business up to and including the Closing. 1.05 In order to effectuate the foregoing, Seller and Buyer shall execute and deliver at the Closing, the B▇▇▇ of Sale and Assumption of Liabilities Agreement in a form mutually acceptable to the parties.
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Purchase and Sale of Assets and Assumption of Liabilities. 1.01 On (a) Subject to the terms and subject to satisfaction or waiver of all of the conditions set forth in this Agreementherein, on the Closing Date, Seller hereby agrees to shall sell, transfer, convey, assign assign, transfer and deliver to Buyer, and Buyer hereby agrees shall purchase, acquire, accept, assume and pay for, all of Seller's right, title and interest as of the Closing Date in and to purchase from Seller at all of the closingtangible and intangible assets, properties and rights (other than the Excluded Assets described below) of Seller, wherever located (hereinafter collectively referred to as that term is defined in Section 3 hereof (the “Closing”"Assets"), including, without limitation:
(i) all the parcels of real property of Seller as set forth below, free and clear of all liens, encumbrances and restrictions, except as specifically agreed to hereinowned by Seller, all of which are collectively referred identified on Schedule 2.3A, together with all buildings, fixtures and improvements located on or attached to hereinafter as the “Assets”:
such real property, and all options, rights of first refusal, licenses and permits (a) The specific commercial loans, lines of credit, installment loans and other loans and loan commitments carried on the books of the Seller, at par, plus accrued interest thereon to the Closing Dateextent transferable), leases, subleases, easements and listed on Exhibit “A” heretorights-of-way which are appurtenant to such real property, provided however, that Buyer may elect to designate specific commercial loans, lines of credit, installment loans and/or other loans and loan commitments carried on the books of the Seller as “Reserve Loans” provided that Buyer provides written notice to Seller not less than ten (10) business days prior to the Closing Date and such Reserve Loans shall then be subject to the provisions of Section 2.03 hereof; andPermitted Exceptions (the "Owned Properties");
(bii) The specific all of the leases and subleases of real property which are listed on Schedule 2.3B, and the related leasehold interests, licenses, permits (to the extent transferable), leases, subleases, easements and rights-of-way which are appurtenant to and subject to such leasehold interests, subject to the Permitted Exceptions (collectively, the "Leases");
(iii) all of the vehicles and all of the machinery, equipment, rolling stock, tools, furniture, fixtures, and leasehold improvements, pallets, phones, computer equipment, at net book value order entry devices and in an as-isother items of personal property which are owned by Seller (collectively, where-is condition, listed on Exhibit “B” hereto; andthe "Equipment");
(civ) All claims all merchandise inventory owned by Seller or which is in transit to the Warehouse or the Stores on the Closing Date (the "Inventory");
(v) all supplies, containers, labels, packaging material, maintenance supplies, raw food materials, fuel and causes other similar items owned by Seller which are located at the Properties or at vendors of action Seller on the Closing Date (the "Supplies");
(vi) the amount of all transferable deposits, prepaid rent and prepaid expenses made by Seller for all Leases, Contracts or Permits or otherwise relating to the Assets transferred to Buyer;
(vii) all of Seller's Cash and cash equivalents located at the Properties or on deposit in banking or financial institutions in any accounts or safe deposit boxes, and all checks, manufacturers' coupons, food-stamps and WIC coupons located in or at the Properties or otherwise in Seller's possession or control;
(viii) all contracts and agreements of Seller relating to the operations of the Seller has at the Properties, including, without limitation, any purchase orders or might have against supply agreements for Inventory and Supplies relating to the operation of the Properties to the extent provided herein (including, without limitation, the Supply Agreement, dated as of April 12, 1991, as amended, between Richfood, Inc., Seller and certain of Seller's Affiliates, and the Milk and Meat Supply Agreement, dated as of September 23, 1994, between Richfood, Inc., Seller and certain of Seller's Affiliates); leases of or agreements relating to the maintenance, acquisition or use of the Properties or any third party arising out ofvehicles, in connection with or machinery, equipment, rolling stock, tools, furniture, fixtures, phones, computer equipment, computer software, pallets, order entry devices and other items of personal property related thereto; and all of Seller's rights with respect to, and interests in, any consigned, licensed or bailed fixtures, equipment or inventory including, without limitation, shelf end caps, displays, ice chests and food and beverage dispensing equipment (collectively, the Assets or the Liabilities; and"Contracts");
(dix) All all accounts receivable owned by Seller, including, without limitation, accounts receivable of the Stores and the Warehouse (collectively, the "Accounts Receivable");
(x) all licenses and permits pertaining to the operation of Seller’s interest in 's business which are transferable or assignable to Buyer under applicable Law (collectively, the computer software, computer programs and software licenses used by Seller in connection with the CF Business, and "Permits");
(xi) all copyrights, servicemarks, trademarks, trade names, trade secretspatents, licensesservicemarks, royalty rights copyrights, logos, pending applications for the foregoing and proprietary rights of Seller as used in similar intangibles (collectively, the CF Business (the “Software and Intangible Property”"Intangibles");
(exii) All telephone numbers originals or true and complete copies of all of the Books and Records that are in the possession or control of Seller or its Affiliates at Closing;
(xiii) all computer hardware owned by Seller or used in the operation of Seller’s CF Business 's business that is not leased by Seller pursuant to a Contract;
(xiv) all computer software owned by Seller or used in the operation of Seller's business that is not leased or licensed by Seller pursuant to a Contract including, without limitation, the software listed in Schedule 2.3C attached hereto (the “Telephone Numbers”"Software");
(fA) All customer lists all rights of every kind Seller under insurance policies to which Seller is a party, a named insured or otherwise the beneficiary of coverage (the "Insurance Policies"), except directors' and nature whatsoever officers' liability insurance and except claims for business interruption insurance relating to pre-Closing periods, and (B) copies of insurance certificates that Seller has provided to third parties pertaining to the Properties (including, without limitation, the identity of the Seller, whether held by Seller, Seller’s officers, directors and/or employees;
(g) All of Seller’s right, title named insureds and interest in and to that certain lease by and between Seller and CA-Santa M▇▇▇▇▇ Business Park-American Golf Limited Partnership, a Delaware limited partnership and S▇▇▇▇▇▇-Partners Livermore, LTD., a California limited Partnership (collectively the “Santa M▇▇▇▇▇ Landlord”) dated June 29, 1994, as amended (the “Santa M▇▇▇▇▇ Lease”), a copy of which is attached hereto as Exhibit “C-1” regarding that certain real property commonly known as 2▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Santa M▇▇▇▇▇ Premises”) together with the security deposit paid to the Santa M▇▇▇▇▇ Landlord and any and all deposits to providers of utilities of Seller in the Santa M▇▇▇▇▇ Premises as set forth on Exhibit “C-2” hereto (the “Security Deposits”);
(h) All of Seller’s right, title and interest in and to that certain service agreement by and between Seller and Vision Offices(the “Arizona Landlord”) dated January 1, 2003, as amended (the “Arizona Lease”), a copy of which is attached hereto as Exhibit “C-3” regarding that certain real property commonly known as 1▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Arizona Premises”) together with the security deposit paid to the Arizona Landlord and any and all deposits to providers of utilities of Seller in the Arizona Premises as set forth on Exhibit “C-2” hereto;
(i) All of the goodwill of Seller and Seller’s CF Business (the “Goodwill”loss payees); and
(jxvi) Except as set forth on Exhibit “D”, all books, records, manuals, documents, files, reports, studies, instruments insurance proceeds receivable by Seller (except proceeds from claims for directors' and other materials officers' liability insurance and business interruption insurance relating to pre-Closing periods) and all causes of action of Seller relating to the Software and Intangible PropertySeller's business (including, the Telephone Numbers, Customer List, Santa M▇▇▇▇▇ Lease, Arizona Lease, Personal Property, Security Deposits, Goodwill and all other Assets set forth above.
(k) All cash and monies held in the W▇▇▇▇ Fargo Foothill (“WFF”) cash collateral accounts in the name of Seller.
1.02 The parties hereto hereby acknowledge and agree that Buyer is not purchasing any other asset of Seller except as set forth in Section 1.01 hereof, including but not limited to those assets of Seller set forth on Exhibit “D” hereof (“Retained Assets”).
1.03 On the terms and subject to the conditions set forth in this Agreement from and after the Closing, Buyer shall assume and be liable to pay, discharge and perform when due (i) all obligations of Seller under the Santa M▇▇▇▇▇ Lease and the Arizona Lease and all obligations which arise in connection with other Assets provided that such obligations arise or accrue after the Closing, (ii) all obligations of Seller under the vendor contracts as set forth on Exhibit “E” hereto (the “Vendor Contracts”) arising from and after the Closing and (iii) all amounts of principal and interest outstanding on Seller’s lines of credit # CCR000 and CCR001 with WFF as of the Closing (“W▇▇▇▇ Debt”), all of which are collectively referred to as the “Liabilities.”
1.04 Seller hereby represents and warrants to and agrees with Buyer that Buyer shall not assume or become responsible, as a result of this Agreement, for any liabilities of Seller, whether known or unknown, disclosed or undisclosed, contingent or otherwise, which have arisen or may arise or be established in connection with Seller’s conduct of the CF Business, other than those specifically assumed in Section 1.03 hereof. Particularly, but without limitation, Buyer shall not assume:
(a) Any liability any causes of action arising out of any claims of employees employed by supply agreements to which Seller or any independent contractors or agents or other parties making claims for bonusesis a party); provided, salarieshowever, or other payments or benefits from Seller arising out ofthat the property, relating toassets, or resulting from their respective employment or other relationship with Seller;
(b) Any liability of Sellercontracts, or any of its officersleases, directors, or employees in connection with any income or franchise taxes, sales tax, depreciation recapture and investment recapture obligations and any expenses including expenses for professional fees incurred by Seller in connection with the negotiations, preparation, execution, delivery and performance of this Agreement; or
(c) Any other duty, obligation or liability rights of Seller arising out of, resulting from, or relating to the operation of Seller or its CF Business up to and including the Closing.
1.05 In order to effectuate the foregoing, Seller and Buyer shall execute and deliver at the Closingdescribed below (collectively, the B▇▇▇ of Sale and Assumption of Liabilities Agreement in a form mutually acceptable to "Excluded Assets") are expressly excluded from the parties.definition of
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