OR REFERRED TO HEREIN OR IN
ANY AGREEMENT OR INSTRUMENT THAT IS REFERRED TO HEREIN MEANS SUCH LAW OR STATUTE
AS FROM TIME TO TIME AMENDED, MODIFIED OR SUPPLEMENTED, INCLUDING BY SUCCESSION
OF COMPARABLE SUCCESSOR LAWS;
(H)
REFERENCES TO A PERSON ARE ALSO TO ITS
SUCCESSORS AND PERMITTED ASSIGNS; AND
(I)
THE USE OF "OR" IS NOT INTENDED TO BE
EXCLUSIVE UNLESS EXPRESSLY INDICATED OTHERWISE.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01.
Purchase and Sale of Purchased Assets.
(a)
Upon the terms and
subject to the conditions of this Agreement, at the Closing, the Seller shall
sell, assign, transfer, convey and deliver, or cause to be sold, assigned,
transferred, conveyed and delivered, to the Purchaser, and the Purchaser shall
purchase from the Seller, the Seller's right, title and interest at the Closing
in and to the following (the assets to be purchased by the Purchaser, together
with the covenants contained in Section 5.08, being referred to as the
"Purchased Assets"):
(I)
ALL RIGHTS IN RESPECT OF THE LEASED REAL
PROPERTY;
(II)
ALL PROPERTY, PLANT AND EQUIPMENT;
(III)
ALL VEHICLES AND ROLLING STOCK USED
IN THE
BUSINESS;
(IV)
ALL INVENTORIES;
(V)
ALL BOOKS OF ACCOUNT, GENERAL, FINANCIAL,
AND PERSONNEL RECORDS, INVOICES, SHIPPING RECORDS, SUPPLIER LISTS,
CORRESPONDENCE AND OTHER DOCUMENTS, RECORDS AND FILES AND ANY RIGHTS THERETO
WHICH ARE OWNED, OR EMPLOYED BY THE SELLER PRIMARILY IN CONNECTION WITH THE
BUSINESS EXCEPT FOR (X) ORGANIZATION DOCUMENTS, MINUTE AND STOCK RECORD BOOKS,
STOCK CERTIFICATES AND THE CORPORATE SEAL OF THE SELLER AND (Y) THOSE RELATING
TO THE EXCLUDED ASSETS OR THE EXCLUDED LIABILITIES (INCLUDING ALL RECORDS
RELATING TO TAXES);
(VI)
THE GOODWILL RELATING TO THE BUSINESS;
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(VII)
ALL THE SELLER'S RIGHT, TITLE AND INTEREST IN,
TO AND UNDER THE OWNED INTELLECTUAL PROPERTY AND THE LICENSED INTELLECTUAL
PROPERTY, COPIES AND TANGIBLE EMBODIMENTS THEREOF IN WHATEVER FORM OR MEDIUM,
AND ALL RIGHTS TO SUE AND RECOVER DAMAGES FOR PAST, PRESENT AND FUTURE
INFRINGEMENT, DILUTION, MISAPPROPRIATION, VIOLATION, UNLAWFUL IMITATION OR
BREACH THEREOF;
(VIII)
ALL CLAIMS, CAUSES OF ACTION, CHOSES IN ACTION,
RIGHTS OF RECOVERY AND RIGHTS OF SETOFF OF ANY KIND (INCLUDING RIGHTS TO
INSURANCE PROCEEDS AND RIGHTS UNDER AND PURSUANT TO ALL WARRANTIES,
REPRESENTATIONS AND GUARANTEES MADE BY SUPPLIERS OF PRODUCTS, MATERIALS, OR
EQUIPMENT, OR COMPONENTS THEREOF), RELATED TO THE BUSINESS PERTAINING TO,
ARISING OUT OF AND INURING TO THE BENEFIT OF THE SELLER ("CLAIMS") INCLUDING
THOSE REASONABLY NECESSARY OR DESIRABLE TO ENFORCE SUCH RIGHTS AGAINST THIRD
PARTIES OR TO DEFEND AGAINST THOSE SEEKING TO ENFORCE THE ASSUMED LIABILITIES;
EXCEPT THOSE CLAIMS WHICH ARE RELATED TO THE EXCLUDED LIABILITIES OR THE
EXCLUDED ASSETS;
(IX)
ALL SALES AND PROMOTIONAL LITERATURE,
CUSTOMER LISTS AND OTHER SALES-RELATED MATERIALS OF THE SELLER USED IN THE
BUSINESS;
(X)
ALL RIGHTS OF THE SELLER UNDER THE
CONTRACTS, LICENSES, SUBLICENSES, AGREEMENTS, LEASES, COMMITMENTS, AND SALES AND
PURCHASE ORDERS, AND UNDER ALL BIDS AND OFFERS RELATED TO THE BUSINESS SET FORTH
ON SECTION 2.01(A)(X) OF THE DISCLOSURE SCHEDULE (THE "ASSUMED CONTRACTS");
(XI)
ALL MUNICIPAL, STATE AND FEDERAL FRANCHISES,
PERMITS, LICENSES, AGREEMENTS,