set forth in §5.6.
7
2.
ACQUISITION OF ASSETS BY BUYER.
2.1.
PURCHASE AND SALE OF ASSETS.
THE SELLER AGREES TO SELL AND
TRANSFER TO THE BUYER, AND THE BUYER AGREES TO PURCHASE AND ACQUIRE FROM THE
SELLER AT THE CLOSING, SUBJECT TO THE EXCLUSIONS CONTAINED IN §2.2 AND SUBJECT
TO AND UPON THE OTHER TERMS AND CONDITIONS CONTAINED HEREIN, ALL OF SELLER'S
RIGHT, TITLE AND INTEREST IN AND TO THE ASSETS OF THE SELLER WHICH ARE USED IN
THE CONDUCT OF THE BUSINESS ON THE DATE HEREOF AS SET FORTH BELOW (COLLECTIVELY,
THE "ACQUIRED ASSETS"), AND NO OTHER PROPERTIES, ASSETS, OR RIGHTS OF THE
SELLER:
(A)
(I) THE TANGIBLE PERSONAL PROPERTY AND LEASEHOLD IMPROVEMENTS,
INCLUDING MACHINERY, EQUIPMENT (INCLUDING, WITHOUT LIMITATION, POS EQUIPMENT),
ALARM SYSTEMS, TOOLS, FURNITURE, FIXTURES, FURNISHINGS, SHELVING, OWNED BY THE
SELLER AS OF THE DATE HEREOF AND USED IN THE CONDUCT OF THE BUSINESS, EACH AS
SET FORTH ON THE FIXED ASSET REGISTER ATTACHED HERETO AS SCHEDULE 2.1(A)(I), AND
(II) THE INVENTORIES (INCLUDING IN TRANSIT INVENTORY AND INVENTORIES LOCATED AT
OFF-SITE STORAGE FACILITIES USED IN CONNECTION WITH CONDUCT OF THE BUSINESS) AND
SUPPLIES OWNED BY THE SELLER AS OF THE DATE HEREOF FOR USE IN CONNECTION WITH
THE CONDUCT OF THE BUSINESS, EACH AS SET FORTH ON SCHEDULE 2.1(A)(II)
(COLLECTIVELY WITH THE ITEMS SET FORTH ON SCHEDULE 2.1(A)(I), "PERSONAL
PROPERTY"); PROVIDED, HOWEVER, THAT BUYER SHALL HAVE THE RIGHT, BUT NOT THE
OBLIGATION, WITHIN THIRTY (30) CALENDAR DAYS AFTER THE CLOSING TO RETURN TO
SELLER BY NOTIFYING SELLER IN WRITING WITHIN SUCH PERIOD OF, AND MAKING
AVAILABLE TO, SELLER FOR THIRTY (30) CALENDAR DAYS FOLLOWING SUCH WRITTEN
NOTIFICATION AT THE ACQUIRED LOCATION ANY PERSONAL PROPERTY THAT THE BUYER DOES
NOT ELECT TO ACQUIRE FROM THE SELLER PURSUANT TO THIS §2.1(A), BUT SELLER SHALL
NOT BE REQUIRED TO ACCEPT SUCH PERSONAL PROPERTY SO MADE AVAILABLE AND ANY SUCH
RETURN BY THE BUYER THAT IS ACCEPTED BY THE SELLER SHALL BE IRREVOCABLE AND
SHALL NEITHER REQUIRE THE PAYMENT OF ANY CONSIDERATION BY THE SELLER NOR SHALL
ADJUST IN ANY MANNER THE PURCHASE PRICE SET FORTH IN §2.5 BELOW;
(B)
ALL RIGHTS OF THE SELLER (I) AS TENANT UNDER THE LEASE RELATING TO
THE REAL PROPERTY AT THE ACQUIRED LOCATION AND (II) UNDER THE LEASES RELATING TO
SUCH PERSONAL PROPERTY AS IS USED IN THE BUSINESS, EACH AS SET FORTH ON SCHEDULE
2.1(B) (COLLECTIVELY, THE "LEASES");
(C)
ALL CASH (SUBJECT TO THE BUYER'S COMPLIANCE WITH §2.11);
(D)
ALL RIGHTS OF THE SELLER TO THE TELEPHONE NUMBERS OF THE ACQUIRED
LOCATION, EACH AS SET FORTH ON SCHEDULE 2.1(D); PROVIDED, HOWEVER, THAT UNDER NO
CIRCUMSTANCES SHALL SUCH TRANSFER OF RIGHTS WITH RESPECT TO SUCH TELEPHONE
NUMBERS BE CONSTRUED OR INTERPRETED AS SELLING, TRANSFERRING, OR LICENSING TO
THE BUYER OR BUYER PARENT (AND THE SELLER SHALL RETAIN ALL OF THE SELLER'S
RIGHT, TITLE AND INTEREST IN AND TO) ANY INTELLECTUAL PROPERTY OF THE SELLER
RELATING TO, ASSOCIATED WITH, OR USED IN CONNECTION WITH SUCH TELEPHONE NUMBERS,
GOODWILL ASSOCIATED THEREWITH, LICENSES AND SUBLICENSES GRANTED