CONTRACTS"), INCLUDING ANY THEREOF
WITH CUSTOMERS OR PROSPECTIVE CUSTOMERS WHICH BENEFIT THE BUSINESS FROM AND
AFTER THE EFFECTIVE DATE, INCLUDING, BUT NOT LIMITED TO, COMPUTER TRAINING
CENTER AGREEMENTS AND, FURTHER, INCLUDING ALL RIGHTS TO RECEIVE PAYMENT FROM
CUSTOMERS FOR SERVICES TO BE PERFORMED AND INVOICED AFTER THE EFFECTIVE DATE
("CUSTOMER CONTRACTS"), INCLUDING WITHOUT LIMITATION THE RIGHT TO PAYMENT WITH
REGARD TO COUPON SALES AND REDEMPTIONS, PC CLUB SALES, CORPORATE TECHNICAL CLUB
SALES OR APPLICATIONS, AND FUTURE TRAINING CLASSES, A LISTING OF ALL OF WHICH
ASSIGNED CONTRACTS IS INCLUDED AT SCHEDULE 2.1(F) ATTACHED HERETO; AND
(G)
SELLER'S BOOKS AND RECORDS, BOOKS OF ACCOUNT, PERSONNEL FILES AND
RECORDS FOR THOSE EMPLOYEES OF SELLER WHO BECOME EMPLOYEES OF BUYER, FILES,
INVOICES, ACCOUNTING RECORDS, AND CORRESPONDENCE RELATING TO ANY OF THE
BUSINESS, THE PURCHASED ASSETS OR THE ASSUMED LIABILITIES ("RECORDS").
8
2.2
RETAINED ASSETS.
NOTWITHSTANDING THE PROVISIONS OF SECTION 2.1,
THE PURCHASED ASSETS SHALL NOT INCLUDE ANY OF THE FOLLOWING (THE "RETAINED
ASSETS"):
(A)
ANY CUSTOMER CONTRACTS BETWEEN SELLER'S AFFILIATE AND THIRD PARTY
CUSTOMERS FOR THE DELIVERY OF TRAINING MANAGED THROUGH THE ENTERPRISE LEARNING
SOLUTIONS DEPARTMENT OF SELLER'S AFFILIATE, PROVIDED THAT BUYER SHALL BE
ENTITLED TO DELIVER TRAINING IN ITS CAPACITY AS A NEW HORIZONS FRANCHISEE AND
SHALL BE DEEMED THE "SELLING CENTER" WHICH SHALL ENTITLE BUYER TO RECEIVE
CUSTOMARY REVENUE SHARING OFFERED BY THE ENTERPRISE LEARNING SOLUTIONS
DEPARTMENT OF SELLER'S AFFILIATE;
(B)
SELLER'S CASH;
(C)
SELLER'S RIGHTS UNDER THIS AGREEMENT;
(D)
SELLER'S CORPORATE MINUTE BOOKS, STOCK RECORDS AND TAX RETURNS OR
OTHER SIMILAR CORPORATE BOOKS AND RECORDS RELATING TO THE BUSINESS, TO ANY OF
THE RETAINED ASSETS, TO ANY RETAINED LIABILITY, OR TO THE NEGOTIATION AND
CONSUMMATION OF THE TRANSACTIONS PROVIDED FOR IN THIS AGREEMENT, AND THOSE
RECORDS, IF ANY, ORIGINALS OF WHICH SELLER IS REQUIRED TO MAINTAIN UNDER
APPLICABLE LAW;
(E)
SELLER'S RIGHTS ARISING UNDER ANY CONTRACTS WHICH ARE NOT AN
ASSIGNED CONTRACT;
(F)
ANY RIGHTS OF SELLER RELATING TO ITS CONDUCT OF THE BUSINESS WHICH
ARISE FROM OR ARE RELATED TO SERVICES PREVIOUSLY PROVIDED BY THE REGIONAL OFFICE
OF SELLER'S AFFILIATE (SUCH AS ACCOUNTING, PAYROLL, LEGAL OR OTHER SIMILAR
SERVICES, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN); AND.
(G)
ANY ASSETS OWNED BY ANY OF SELLER'S AFFILIATES, NONE OF WHICH IS
PHYSICALLY LOCATED AT THE LEASED PREMISES NOR USED IN THE CONDUCT OF THE
BUSINESS.
2.3
NON-TRANSFERABILITY OF CERTAIN CONTRACTS.
NOTHING IN THIS
AGREEMENT SHALL BE CONSTRUED AS AN ATTEMPT TO ASSIGN ANY CONTRACT INTENDED TO BE
AN ASSIGNED CONTRACT INCLUDED IN THE PURCHASED ASSETS THAT IS BY ITS TERMS OR
LAW NON-ASSIGNABLE WITHOUT THE CONSENT OF THE OTHER PARTY OR PARTIES THERETO,
UNLESS SUCH CONSENT SHALL HAVE BEEN GIVEN OR AS TO WHICH ALL THE REMEDIES FOR
THE ENFORCEMENT THEREOF ENJOYED BY SELLER WOULD, AS A MATTER OF LAW, PASS TO
BUYER AS AN INCIDENT OF THE ASSIGNMENTS PROVIDED FOR BY THIS AGREEMENT.
SELLER
SHALL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN THE CONSENT OF ANY THIRD
PARTY TO THE ASSIGNMENT TO BUYER OF ANY ASSIGNED CONTRACT FOR WHICH SUCH CONSENT