SECTION OR OTHER
PROVISION HEREOF; (VII) "INCLUDING" (AND WITH CORRELATIVE MEANING "INCLUDE")
MEANS INCLUDING WITHOUT LIMITING THE GENERALITY OF ANY DESCRIPTION PRECEDING
SUCH TERM; (VIII) "OR" IS USED IN THE INCLUSIVE SENSE OF "AND/OR"; (IX) WITH
RESPECT TO THE DETERMINATION OF ANY PERIOD OF TIME, "FROM" MEANS "FROM AND
INCLUDING" AND "TO" MEANS "TO BUT EXCLUDING"; AND (X) REFERENCES TO DOCUMENTS,
INSTRUMENTS OR AGREEMENTS SHALL BE DEEMED TO REFER AS WELL TO ALL ADDENDA,
EXHIBITS, SCHEDULES OR AMENDMENTS THERETO.
(B)
LEGAL REPRESENTATION OF THE PARTIES.
THIS AGREEMENT WAS NEGOTIATED BY THE
PARTIES WITH THE BENEFIT OF LEGAL REPRESENTATION, AND ANY RULE OF CONSTRUCTION
OR INTERPRETATION OTHERWISE REQUIRING THIS AGREEMENT TO BE CONSTRUED OR
INTERPRETED AGAINST ANY PARTY SHALL NOT APPLY TO ANY CONSTRUCTION OR
INTERPRETATION HEREOF.
10
ARTICLE II
Purchase and Sale of Businesses and Assets.
2.1
Purchase and Sale of Assets.
Subject to the terms and conditions of this
Agreement, each Seller agrees to sell, assign, convey, transfer and deliver to
Buyer as of the Closing Date, and Buyer agrees to purchase and take assignment
and delivery from the Sellers as of the Closing Date, all of such Seller's
right, title and interest in and to the Purchased Assets, free and clear of all
Encumbrances other than the Permitted Encumbrances.
2.2
Excluded Assets.
Pursuant to this Agreement, Buyer is not acquiring, and
the Sellers shall retain, the following assets, rights and properties
(collectively, the "Excluded Assets") and, as such, they are not included in the
Purchased Assets:
(A)
ALL CASH AND CASH EQUIVALENTS OF THE SELLERS ON HAND IN THE SELLERS'
ACCOUNTS IMMEDIATELY PRIOR TO CLOSING, OTHER THAN SECURITY DEPOSITS RELATED TO
THE ASSUMED CONTRACTS, AND DEFERRED REVENUE CASH.
(B)
ALL SELLER ACCOUNTS RECEIVABLE.
(C)
ALL CONTRACTS THAT HAVE TERMINATED OR EXPIRED PRIOR TO THE CLOSING DATE IN
THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH THE PAST PRACTICES OF THE
SELLERS , EXCEPT ANY FRANCHISE AGREEMENTS FOR ACTIVE FRANCHISED LOCATIONS THAT
ARE OPERATING UNDER FORMAL OR INFORMAL, WRITTEN OR VERBAL, SHORT TERM EXTENSIONS
PENDING COMPLETION OF THE RENEWAL PROCESS AND EXECUTION OF RENEWAL FRANCHISE
AGREEMENTS.
(D)
ALL BOOKS AND RECORDS AS PERTAIN TO THE ORGANIZATION, EXISTENCE OR
CAPITALIZATION OF THE SELLERS AND ANY OTHER RECORDS OR MATERIALS RELATING TO THE
SELLERS GENERALLY AND NOT INVOLVING OR RELATING TO THE PURCHASED ASSETS, OTHER
THAN BOOKS AND RECORDS.
(E)
ALL ASSETS AND RIGHTS ASSOCIATED WITH ANY EMPLOYEE BENEFIT PLAN,
COLLECTIVE BARGAINING AGREEMENTS OR ARRANGEMENTS OR ANY EMPLOYMENT, SEVERANCE
CHANGE OF CONTROL OR OTHER SIMILAR AGREEMENTS OR ARRANGEMENTS, IF ANY,
MAINTAINED, CONTRIBUTED TO OR WITH RESPECT TO WHICH THE SELLERS OR ANY ERISA
AFFILIATE OF EITHER SELLER HAS ANY ACTUAL OR POTENTIAL LIABILITY.
(F)
ALL RIGHTS OF THE SELLERS UNDER THIS AGREEMENT, ANY AGREEMENT,
CERTIFICATE, INSTRUMENT OR OTHER DOCUMENT EXECUTED AND DELIVERED BY EITHER
SELLER OR BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY
SIDE AGREEMENT BETWEEN EITHER SELLER AND BUYER ENTERED INTO ON OR AFTER THE DATE
OF THIS AGREEMENT.
2.3
Assumed Liabilities.
On the terms and subject