Form Apa - Asset Purchase Agreement Page 6
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461
Seller's Affiliates and located in, at or upon the _______________________; and (b) any
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leased vehicles used by the Transferred Employees.
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"Liabilities" shall mean any direct or indirect liability, indebtedness, obligation,
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commitment, expense, claim, deficiency, guaranty or endorsement of or by any person of
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any type, whether accrued, absolute, contingent, matured, unmatured or other.
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"Material Adverse Effect" or "material adverse change" shall mean with respect to
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the Business or the Purchased Assets any significant and substantial adverse effect or
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significant or substantial adverse change in the financial condition of the Business and/or
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the Purchased Assets, taken as a whole, or on the ability of Seller to consummate the
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transactions contemplated hereby.
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"Net Working Capital" shall mean all Accounts Receivable, prepaid expenses and
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Inventory, less the amount of the Assumed Current Liabilities, calculated in a manner
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consistent with the preparation of the Financial Statements.
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"ordinary course of business" or "ordinary course" or any similar phrase shall
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mean the ordinary course of the conduct of the Business and consistent with Seller's past
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practice.
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"Permits" shall mean all licenses, permits, franchises, approvals, authorizations,
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consents or orders of, or filings with, any governmental authority, whether federal, state
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or local, or any other Person, necessary for the conduct of the Business as currently
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conducted.
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"Permitted Encumbrances" shall mean (i) statutory liens for current taxes or
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assessments not yet delinquent or the validity of which is being contested in good faith by
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appropriate proceedings, (ii) mechanics', carriers', workers', repairers' and other similar
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liens arising or incurred in the ordinary course of business and not yet due or delinquent
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or the validity of which is being contested in good faith by appropriate proceedings,
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(iii) Encumbrances set forth on Schedule 1.1C, and (iv) other Encumbrances which in the
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aggregate do not materially interfere with the operation of the Business as it is presently
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being conducted.
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"Person" shall mean any individual, corporation (including any non-profit
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corporation), general or limited partnership, limited liability company, joint venture,
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estate, trust, association, organization, labor union, or other entity or governmental body.
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"Purchased Assets" shall mean all of Seller's and Seller's Affiliates' right, title and
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interest in, to and under, to the extent transferable, (i) the Books and Records, (ii) the
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Fixtures and Equipment, (iii) the Inventory, (iv) the Accounts Receivable, (v) the Permits
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to the extent transferable, (vi) the Assumed Agreements, and (vii) any prepaid expenses
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relating exclusively to the Business; provided, however, that in no event shall "Purchased
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Assets" include any of the Excluded Assets.
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"Purchased Products" shall mean those products listed on Schedule 1.1D.
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