Common use of Purchase and Sale of Assets Assumption of Liabilities Clause in Contracts

Purchase and Sale of Assets Assumption of Liabilities. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, the Company shall sell, assign, convey, transfer and deliver to Purchaser, and the Purchaser shall purchase and acquire from the Company, all right, title and interest in and to all of the assets of the Company, including but not limited to all of the following assets, wherever located (collectively, the “Assets”): (i) all rights under Applicable Contracts; (ii) all tangible personal property owned, used or leased by the Company, including any machinery, equipment, operating supplies and other similar property, wherever located; (iii) all inventions, copyrights, patents, trademarks, trademark applications, trade names, trade secrets, logos , including any proprietary know-how and use and application know-how, manufacturing, engineering, drawings, design and engineering specifications, production standards, practices and promotional literature and advertising and any and all other intellectual property rights, including those derived, if any, from services previously rendered to customers and the right to s▇▇ for past infringements thereof; (iv) all software in which the Company has an interest including source and object codes, computer applications and operating programs used in connection with the business of the Company; all causes of action, judgments, claims, and demands of any nature related to such software; (v) all customer lists, supplier lists, sales and marketing records and materials, client files and records, and other business records; (vi) all current assets, including all cash, prepaid expenses, and all trade and other accounts and notes receivable; and (vii) all intangible property, including goodwill and covenants not to compete. Subject to the terms and conditions of this Agreement, at the Effective Time the Purchaser will assume all of the Company’s duties, liabilities and obligations (collectively, the “Assumed Obligations”), with the sole exception of those duties and liabilities listed on Schedule 2.1 (the “Excluded Obligations”). Notwithstanding anything to the contrary above, Purchaser will not assume any liabilities or obligations of the Company if the existence of such liabilities or obligations either are, or give rise to or result from, facts or circumstances that constitute a misrepresentation or breach of the representations and warranties made in this Agreement. The Assumed Obligations are the only liabilities and obligations of the Company that Purchaser will assume in connection with this Agreement.

Purchase and Sale of Assets Assumption of Liabilities. Upon At the terms Closing (defined in Section 1.2 hereof) and subject to the conditions of this Agreement, at the Effective Time, the Company shall sell, assign, convey, transfer and deliver to Purchaser, and the Purchaser shall purchase and acquire from the Company, all right, title and interest in and to all of the assets of the Company, including but not limited to all of the following assets, wherever located (collectively, the “Assets”): (i) all rights under Applicable Contracts; (ii) all tangible personal property owned, used or leased by the Company, including any machinery, equipment, operating supplies and other similar property, wherever located; (iii) all inventions, copyrights, patents, trademarks, trademark applications, trade names, trade secrets, logos , including any proprietary know-how and use and application know-how, manufacturing, engineering, drawings, design and engineering specifications, production standards, practices and promotional literature and advertising and any and all other intellectual property rights, including those derived, if any, from services previously rendered to customers and the right to s▇▇ for past infringements thereof; (iv) all software in which the Company has an interest including source and object codes, computer applications and operating programs used in connection with the business of the Company; all causes of action, judgments, claims, and demands of any nature related to such software; (v) all customer lists, supplier lists, sales and marketing records and materials, client files and records, and other business records; (vi) all current assets, including all cash, prepaid expenses, and all trade and other accounts and notes receivable; and (vii) all intangible property, including goodwill and covenants not to compete. Subject to the terms and conditions of this Agreement including, without limitation, satisfaction of the conditions found in Article 6 hereof: (a) Seller shall sell, transfer, convey and deliver to Internet Brands and Internet Brands shall purchase and acquire from Seller, all of Seller’s rights, title, and interest in all Website-related domain and sub-domain names, URLs, software, assets, content, customer, advertiser and member databases, trademarks, service marks, trade names, copyrights, contract rights and all other intellectual property and technology comprising the Website and exclusively related to its business, in each case identified on Schedule 1.1(a) hereof, free and clear of any liens, claims, charges, pledges, security interests, options or other legal or equitable encumbrances (collectively, the “Purchased Assets”). (b) Notwithstanding Section 1.1(a), the Purchased Assets shall exclude any assets (the “Excluded Assets”) not specifically set forth in Schedule 1.1(a) and Schedule 2.3, including without limitation assets related to Seller’s retail websites’ business, Seller’s wholesale and correspondent loan programs library and related databases, and Seller’s “Lion Broker” broker-to-broker portal and pricing engine. Notwithstanding anything to the contrary herein, except for the express assignments granted in this Agreement, at the Effective Time the Purchaser will assume all nothing herein shall be deemed to transfer any rights in any intellectual property owned, licensed to, conceived, reduced to practice or otherwise developed by Seller by virtue of its reference, incorporation or use within any of the Company’s dutiesPurchased Assets. (c) As of the Closing Date, Internet Brands shall assume and be liable for all liabilities and obligations arising from the Purchased Assets after Closing, including all post-Closing liabilities for performance under each of the assumed contracts except liabilities, even if arising post-Closing, for services provided by Seller under the assumed contracts prior to Closing (collectively, the “Assumed Obligations”), with the sole exception of those duties and liabilities listed on Schedule 2.1 (the “Excluded ObligationsLiabilities”). Internet Brands agrees to promptly pay, perform, honor and discharge, or cause to be paid or otherwise promptly performed, honored and discharged, from and after the Closing all Assumed Liabilities as they become due and payable and in accordance with the terms thereof. (d) Notwithstanding anything to the contrary aboveherein, Purchaser will Internet Brands is not assume assuming and shall not become responsible for any liabilities liability of Seller of whatever nature, whether presently in existence or obligations arising hereafter, including any liability incurred in connection with, arising out of, or related to the ownership or use of any of the Company if Purchased Assets or the existence conduct of the Website or its business on or prior to the Closing Date, and all severance and transition costs, except the Assumed Liabilities. All such liabilities or obligations either are, or give rise other than the Assumed Liabilities are referred to or result from, facts or circumstances that constitute a misrepresentation or breach herein as the “Excluded Liabilities” and shall be retained by and remain liabilities of the representations and warranties made in this Agreement. The Assumed Obligations are the only liabilities and obligations of the Company that Purchaser will assume in connection with this AgreementSeller.

Purchase and Sale of Assets Assumption of Liabilities. Upon (a) On the terms and subject to the conditions of this to be set forth in a definitive legally binding, written agreement to be negotiated and entered into by Buyer and Seller (the "Definitive Agreement") with regard to the Acquisition, at the Effective Time, the Company shall sell, assign, convey, transfer and deliver to Purchaser, and the Purchaser shall Buyer will purchase and acquire from the Company, all right, title and interest in and to substantially all of the operating assets of Seller (the Company"Assets"), including but not limited constituting the business of designing, assembling and marketing golf clubs and related golf equipment (the "Business") at the closing (the "Closing"), which shall be specified in the Definitive Agreement to all occur no later than three Court days after entry of an order of the Bankruptcy Court approving the Acquisition. The Assets shall include all goods, inventory, general intangibles, customer lists, intellectual property, all molds, dyes, tools and other equipment, except for any agreed-upon changes contemplated by the parties and enumerated in the Definitive Agreement and as except for the Excluded Assets (as defined below). The following assets, wherever located assets of Seller related to the Business shall be excluded from the Assets to be purchased by Buyer (collectively, the “"Excluded Assets”): "): (i) all rights under Applicable Contracts; of Seller's cash and cash equivalents, including, but not limited to, bank accounts and temporary cash investments; (ii) all tangible personal the real property ownedlease for Seller's headquarters premises in Carlsbad, used or leased by California (the Company"Premises"), including any machineryall buildings and improvements located thereon, equipmentall of the fixtures attached thereto, operating supplies all prepaid rent, security deposits and other similar propertyoptions to renew or purchase in connection therewith, wherever located; (iii) all inventionsfurniture, copyrightsfixtures and equipment owned by Seller, patentsincluding, trademarksbut not limited to, trademark applicationsall furniture, trade namesfixtures and equipment located at the Premises (but excluding molds, trade secretsdyes, logos tools and equipment necessary to the production of Seller's products having a fair market value not to exceed $50,000) (collectively, including any proprietary know-how and use and application know-how"Excluded FF&E"), manufacturing, engineering, drawings, design and engineering specifications, production standards, practices and promotional literature and advertising and any and all other intellectual property rights, including those derived, if any, from services previously rendered to customers and the right to s▇▇ for past infringements thereof; (iv) all software in which rights to or claims for refunds of taxes and other charges for periods ending on or prior to the Company has an interest including source Closing and object codes, computer applications and the benefit of net operating programs used in connection with the business loss carryforwards or other credits of the Company; all causes of action, judgments, claimsSeller, and demands of any nature related to such software; (v) all customer listsinsurance policies of Seller existing as of the Closing, supplier lists, sales and marketing records and materials, client files and records, and other business records; (vi) all current assetsprepayments and deposits of any kind whatsoever, including all cashSeller's rental deposit for the ▇▇▇▇▇▇▇▇▇▇ facility, prepaid expenses, and all trade and other accounts and notes receivable; and (vii) all intangible propertynotes and other amounts payable to Seller by current or former employees or independent contractors, (viii) all golf course memberships, including goodwill Seller's memberships at Loma Santa Fe and covenants not to competeFairbanks Ranch, and (ix) all actions assertable by Seller under title 11 of the United States Code. Subject In addition to the terms foregoing, through and conditions including September 17, 1998, Buyer shall have the right to negotiate with Seller for the purchase of this Agreement, at the Effective Time the Purchaser will assume any or all of the Company’s duties, liabilities and obligations (collectivelyExcluded FF&E, the “Assumed Obligations”purchase price of which will increase the Cash Payment and the Purchase Price accordingly. The Acquisition shall be subject to the parties' obtaining the approval of the United States Bankruptcy Court for the Southern District of California (the "Bankruptcy Court"). (b) At the Closing, as consideration for the purchase of the Assets, Buyer shall (i) pay to Seller Four Million Five Hundred Thousand Dollars ($4,500,000) in cash including the Deposit (as defined below) (the "Cash Payment"), with the sole exception (ii) issue to Seller redeemable convertible preferred stock of those duties and liabilities listed on Schedule 2.1 Buyer (the “Excluded Obligations”"Stock") with face value of Three Million Five Hundred Thousand Dollars ($3,500,000) (the "Face Value"), as more particularly described below, (iii) assume the liabilities set forth under subparagraph (d) below, (iv) irrevocably assign to Seller all rights to payments under the Sumikin Contracts (as defined below) or equivalent rights, in the manner set forth under subparagraph (e) below, and (v) issue to Seller the option to acquire 20,000 shares of Buyer's common stock ("Buyer Common Stock") at a price of $10.00 per share, exercisable in whole or in part at any time for a period of five years after the Closing. Notwithstanding anything The Stock or any portion thereof shall be convertible by Seller at any time after the date that is 18 months following the Closing into that number of shares of Buyer Common Stock equal to the contrary above, Purchaser will not assume any liabilities or obligations dollar amount of the Company if the existence of such liabilities or obligations either are, or give rise to or result from, facts or circumstances that constitute a misrepresentation or breach of the representations and warranties made in this Agreement. The Assumed Obligations are the only liabilities and obligations of the Company that Purchaser will assume in connection with this AgreementFace Value divided by $16.

Purchase and Sale of Assets Assumption of Liabilities. 2.1 Purchase and Sale of Assets and Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of set forth in this Agreement, at effective as of the Effective Time, the Company shall Closing Date: (a) Seller agrees to sell, assign, conveytransfer, transfer convey and deliver to Purchaser, and the Purchaser shall agrees to purchase and acquire from the CompanySeller, all of Seller's right, title and interest in and to the Assets, free and clear of all Encumbrances except Permitted Encumbrances; (b) Seller agrees to assign to Purchaser, and Purchaser agrees to assume from Seller, the Assumed Liabilities; and (c) Seller agrees to assign to Purchaser, and Purchaser shall assume from Seller, all of Seller's rights and obligations under the assets Assumed Contracts, subject to the obtaining of all necessary consents by the Companyother parties thereto. In connection with the Acquisition, including but not limited on the Closing Date, Seller shall take (and shall cause its Affiliates to take) any and all actions that may be required, or reasonably requested by Purchaser, to transfer title to all of the following assetsAssets, wherever located free and clear of all Encumbrances (collectivelyexcept Permitted Encumbrances), to Purchaser. Seller shall make the “Assets”): (i) all rights under Applicable Contracts; (ii) all tangible personal property ownedAssets available to Purchaser on the Closing Date, used or leased by and Seller shall further deliver to Purchaser the Company, including any machinery, equipment, operating supplies and other similar property, wherever located; (iii) all inventions, copyrights, patents, trademarks, trademark applications, trade names, trade secrets, logos , including any proprietary know-how and use and application know-how, manufacturing, engineering, drawings, design and engineering specifications, production standards, practices and promotional literature and advertising and any and all other intellectual property rights, including those derived, if any, from services previously rendered to customers and the right to sBill ▇▇ for past infringements thereof; Sale, Assignment and Assumption Agreement, as well as such other instruments of sale and/or transfer as counsel to Purchaser may reasonably request (ivwhether at or after the Closing) all software in which to evidence and effect the Company has an interest including source and object codesAcquisition contemplated herein. Seller agrees that, computer applications and operating programs used in connection with to the business extent any Assets are owned or held by any Affiliate of the Company; all causes of actionSeller, judgments, claims, and demands of any nature related Seller shall also cause title to such software; Assets to be transferred and assigned to Purchaser, free and clear of all Encumbrances (v) all customer lists, supplier lists, sales and marketing records and materials, client files and records, and other business records; (vi) all current assets, including all cash, prepaid expenses, and all trade and other accounts and notes receivable; and (vii) all intangible property, including goodwill and covenants not to compete. Subject to the terms and conditions of this Agreement, at the Effective Time the Purchaser will assume all of the Company’s duties, liabilities and obligations (collectively, the “Assumed Obligations”except Permitted Encumbrances), with on the sole exception of those duties and liabilities listed on Schedule 2.1 (the “Excluded Obligations”)Closing Date. Notwithstanding anything herein to the contrary abovecontrary, Purchaser the Acquisition will not assume any liabilities or obligations of be effective as to Assets and Employees located in France and Assumed Contracts with customers located in France until the Company if the existence of such liabilities or obligations either are, or give rise date upon which all Laws and Decrees in France applicable to or result from, facts or circumstances that constitute a misrepresentation or breach of the representations and warranties made in this Agreement. The Assumed Obligations are the only liabilities and obligations of the Company that Purchaser will assume in connection with this Agreement.the