INDIVIDUALLY; (III) REFERENCE TO ANY GENDER
INCLUDES EACH OTHER GENDER; (IV) REFERENCE TO ANY AGREEMENT, DOCUMENT OR
INSTRUMENT MEANS SUCH AGREEMENT, DOCUMENT OR INSTRUMENT AS AMENDED OR MODIFIED
AND IN EFFECT FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS THEREOF;
(V) REFERENCE TO ANY LEGAL REQUIREMENT MEANS SUCH LEGAL REQUIREMENT AS AMENDED,
MODIFIED, CODIFIED, REPLACED OR REENACTED, IN WHOLE OR IN PART, AND IN EFFECT
FROM TIME TO TIME, INCLUDING RULES AND REGULATIONS PROMULGATED THEREUNDER, AND
REFERENCE TO ANY SECTION OR OTHER PROVISION OF ANY LEGAL REQUIREMENT MEANS THAT
PROVISION OF SUCH LEGAL REQUIREMENT FROM TIME TO TIME IN EFFECT AND CONSTITUTING
THE SUBSTANTIVE AMENDMENT, MODIFICATION, CODIFICATION, REPLACEMENT OR
REENACTMENT OF SUCH SECTION OR OTHER PROVISION; (VI) "HEREUNDER," "HEREOF,"
"HERETO,"
AND WORDS OF SIMILAR IMPORT SHALL BE DEEMED REFERENCES TO THIS
AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR ARTICLE, 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.
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 directed by Buyer) as of the Closing Date, and Buyer agrees to
purchase and to take (or to cause its designated Affiliate to 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 (other than the
Marketing
14
Fees Balance, which shall be delivered by the Sellers to the Buyer within five
(5) Business Days after the Closing Date), 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