Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 9 contracts
Samples: Asset Purchase Agreement (Medicine Man Technologies, Inc.), Asset Purchase Agreement (Medicine Man Technologies, Inc.), Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to Except for the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, Purchaser shall not assume or agree to pay, perform or discharge any liabilities or obligations of Sellers, whether disclosed or undisclosedaccrued, known or unknownabsolute, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued contingent or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under including without limitation liabilities based on or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with (a) any defects in products manufactured, rented or sold by Sellers prior to the failure Effective Date, (b) any implied or express warranties relating to such products, (c) any pension or other benefit liability relating to Sellers' employees, (d) any federal, state, local or foreign income, sales, real or personal property or other taxes, assessments, fees, levies, imposts, duties, deductions or other charges of any nature whatsoever (including without limitation interest and penalties) imposed by Seller any law, rule or regulation that are attributable or relating to the assets of the business of Sellers for any periods ending on or before the Effective Date, or that may be applicable because of Sellers' sale of their business or any of the Assets to Purchaser, (e) any claims by any of Sellers' directors, officers, employees or stockholders relating to this Agreement or its Affiliates performance or consummation, or any claims by any of them relating to comply or arising out of (i) their employment (including without limitation any modification or termination thereof) by Sellers, (ii) any employment contract with either Seller or (iii) any Law pension or Governmental Order.other benefit liabilities of Sellers, (f) any claims or conditions arising under or relating to Environmental Laws or similar legal requirements attributable or relating to the Assets (including, without limitation, the operation thereof) or the business of Sellers prior to the Effective Date, (g) any unlicensed or other unauthorized use by Sellers of any patented or unpatented invention, trade secret, copyright, trademark or other intellectual property right, (h) any dividend or other distribution declared or otherwise payable by Sellers, (i) any note, account payable or other obligation of Sellers to any affiliate, or (j) any fees payable to Concord Partners Ltd.
Appears in 3 contracts
Samples: Asset Purchase Agreement (View Tech Inc), Asset Purchase Agreement (View Tech Inc), Asset Purchase Agreement (Pentastar Communications Inc)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and and, (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Medicine Man Technologies, Inc.), Asset Purchase Agreement (Medicine Man Technologies, Inc.), Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with (A) the failure by Seller or any of its Affiliates to comply with any Law or Governmental OrderOrder or (B) the matters set forth on Schedule 5.2(ix)(B).
Appears in 1 contract
Samples: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contraryThe Assumed Liabilities do not include, and Buyer shall have no not assume, any Liability or obligation and is of Sellers other than those specifically identified in Section 2.3, and, without in any way limiting the generality of the foregoing, the Assumed 19 Liabilities do not assuming, and Seller shall retain and timely pay, perform, defend and dischargeinclude the following, all of Seller’s which Liabilities that do shall be paid, performed and observed by Sellers (the Liabilities so retained by Sellers and not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities assumed by Buyer are hereinafter referred to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, as the “Excluded Liabilities”): (a) any Liability or obligation arising from or relating to trade payables or accounts payable of Seller or any of its Affiliates to third parties, whether arising or accruing before or after the Closing; (b) any Liability or obligation of any Seller or any of its Affiliates for Taxes (other than as prorated hereunder), including ; (c) any Liability of any Seller or any of its Affiliates pursuant to any Proceeding that (i) exists on or prior to the Closing Date or (ii) is initiated after the Closing (other than with respect to an Assumed Liability); provided, however, that Sellers shall not retain Liability with respect to matters for which Buyer is expressly required to provide indemnification to Sellers under Section 11.3; (d) any Liability arising out of any notice of violation, citation, cessation order or other violation issued, written or noticed by any Governmental Authority under or with respect to any of the Purchased Permits prior to the Closing; (e) any Liability or obligation of any Seller or any of its Affiliates arising from or relating to any Employee Plans, Employment Agreements or Collective Bargaining Agreements on, prior to or after the Closing Date, including, without limitation, (i) all Liabilities of Sellers or its Affiliates relating to the compensation and benefits (including stock options and other equity-based compensation), salary, commissions and bonuses payable or granted to, incurred, or earned or accrued, or which should have been accrued, in respect of service performed by, employees of Seller arising or incurred its Affiliates, and (ii) any Liability related to the employment or termination of any employee of any Seller or any of its Affiliates (including any workers’ compensation claims, occupational injury, discrimination claims, payroll, employment, compensation plan, program, agreement or arrangement of any Seller or any of its Affiliates and any termination in connection with the negotiation, preparation, investigation and performance consummation of this Agreement, the other related transactions and the transactions contemplated hereby and therebyby this Agreement); (f) any Liability of any Seller or any of its Affiliates related to any royalty, including fees and expenses rental or other payment obligation under any of counselthe Leases, accountants, consultants, advisers and others, (ii) contractual liabilities arising from any of the Business Railroad Agreements or ownership any of the Purchased Assets prior Contracts relating to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation period on or prior to the Closing Date, ; (vg) any Liability attributable to or resulting from any product Liability produced from or similar claim for injury to a person or property which arises out of or is based upon with any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance Purchased Assets sold by or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects on behalf of any products at any time manufactured or sold Seller or any service performed by Seller, of its Affiliates; (vih) any recall, design defect or similar claims all Liabilities related to Indebtedness of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates (other than Assumed Liabilities under Section 2.3); (i) any Liability or obligation of any Seller or any of its Affiliates arising from or relating to comply with any Law of the CONSOL Transaction Documents or Governmental Order.any other Contract or instrument pursuant to which any Seller acquired any of the Purchased Assets, except to the extent that any such Liability or obligation is assumed by Buyer pursuant to the Transaction Documents;
Appears in 1 contract
Samples: Execution Version Asset Purchase Agreement (Ramaco Resources, Inc.)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrarySeller hereby agrees that it shall, Buyer shall have no obligation at all times on and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securitiesduly pay, including but not limited to: (A) any ad valorem Taxes, including real estate discharge and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Datebear sole and full legal obligation for, and (B) any other Taxesshall save, whether related to the Business, the Purchased Assets or otherwise indemnify and any liens on the Purchased Assets relating to any such Taxes, (iv) any hold harmless Purchaser and its Related Persons from and against all Excluded Liabilities in respect of any pending nature or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if type whenever and however arising prior to the Closing Date. By its execution and delivery hereof, the Business) owing to financial institutionsPurchaser is not assuming, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller nor shall it or any of its Affiliates Related Persons incur or be subjected to comply any obligations or liabilities in respect of, any Excluded Liabilities. As used in this Agreement, “Excluded Liabilities” means and includes (a) any and all obligations and liabilities under the Customer Agreements or otherwise in respect of any of the Subject Assets arising at any time prior to the Closing Date therefor or are otherwise related to the ownership and operation of the Subject Assets arising prior to such Closing Date; (b) all obligations and liabilities of Seller and/or its Related Persons to Verizon and other carriers, vendors and service providers for any and all termination, recertification, transition or other nonrecurring or special charges, assessments, fees, costs or impositions to the extent arising or accruing in favor of such carriers, vendors and service providers as a direct result of the Closing hereunder pursuant to the terms and conditions of Seller’s (or such Related Persons’) own agreements existing with such persons; (c) all commission , agency fee, and other obligations to agents and other third parties relating to the ownership and operation of the Subject Assets, whether arising prior to, or after the closing Date; and (d) all obligations and liabilities relating directly and exclusively to any Law or Governmental OrderExcluded Asset hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (StarVox Communications, Inc. /DE/)
Excluded Liabilities. Notwithstanding anything contained In connection with the consummation of the Transactions, neither Buyer nor any of its affiliates or their respective Representatives shall assume or have any responsibility for, or shall be deemed to have assumed or have any responsibility for, any Liability, whenever or however arising, including all costs and expenses relating thereto arising under Applicable Law, or Action before any Governmental Entity, Order or any award of any arbitrator of any kind, in any case, arising from (i) the operation and wind-down of Seller after the Closing, (ii) any Excluded Assets, (iii) any fees or expenses incurred by or on behalf of Seller in connection with this Agreement Agreement, any of the Related Agreements, the Transactions or any equity or debt financing or sale transactions contemplated by Seller, (iv) any claims by any Person alleging that any fiduciary or other similar obligation of any Seller directors or officers was breached or violated, (v) any claims by any Person alleging that the consideration hereunder or that is distributed to the contrarySeller Stockholders was not fair, Buyer shall have no obligation and is not assuming, and (vi) any claims pursuant to any Seller shall retain and timely pay, perform, defend and discharge, all of indemnification obligations under Seller’s Liabilities that do not constitute Assumed LiabilitiesCharter Documents or indemnification agreements entered into between Seller and any Seller director or officer, whether disclosed (vii) Closing Indebtedness, (viii) any severance obligations of Seller or undisclosedany of its Subsidiaries owed to the persons set forth on Section 2.1(e) of the Disclosure Letter, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities (ix) any retention bonus obligations of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities Seller to any Governmental Authority Employees (other than Continuing Employees payable in connection with the consummation of the transactions contemplated hereby), to the extent paid or third partiespayable prior to or upon the Closing, liabilities assumed or incurred by (xi) any Taxes of Seller or any of its Subsidiaries other than the Transferred Subsidiaries arising from or attributable to the Transactions, including any such Taxes for which any of the Transferred Subsidiaries may become liable as a result of being or having been a member of an affiliated, consolidated, combined or similar group for any period or otherwise by operation of law or otherwise Law, and taking into account, in determining the amounts of such Taxes, the available Tax assets of Seller and its Subsidiaries arising in the Pre-Closing Tax Period, including the net operating losses of the Seller’s U.S. consolidated group (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained Except for Assumed Liabilities as provided in this Agreement Section 2.3, Purchaser shall not assume or be obligated to the contrarypay, Buyer shall have no obligation and is not assumingperform or otherwise discharge or be responsible or liable with respect to, and Seller shall retain and timely payindemnify Purchaser Group in accordance with Section 7.1(a)(iv) with respect to, perform, defend and discharge, all any liabilities or obligations of Seller’s Liabilities that do not constitute Assumed LiabilitiesSeller or otherwise relating to the Business or the Project or any present or former owner or operator thereof, whether disclosed or undisclosednot of, associated with, or arising from, any of the Purchased Assets, and whether fixed, contingent or otherwise, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise unknown (collectively, the “"Excluded Liabilities”"), including (i) any Liabilities of Seller arising the following: Any liabilities or incurred obligations relating to, based in whole or in part on events or conditions occurring or existing in connection with the negotiationwith, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation as operated on or prior to the Closing Date, (v) or the design, construction, ownership, possession, use, or operation of any product Liability of the Project, including the Purchased Assets, on or similar claim for injury before the Closing Date, or sale or other disposition on or prior to a person or property which arises out the Closing Date of any capacity of or is based upon energy from the Project or any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance Purchased Assets (or malfunctioning of a productany other assets, improper design properties, rights or manufactureinterests associated, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured on or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, with the Business) owing ); Any liabilities or obligations of Seller to financial institutionsthe extent relating to any Excluded Assets or other assets which are not Purchased Assets and the ownership, operation and conduct of any business in connection therewith or therefrom, including any amounts due from Seller under or arising from any Project Contracts other than the Purchased Project Contracts or from any Intercompany Arrangements; Any liabilities or obligations of Seller in respect of costs determined to be the responsibility of Seller under Section 3.4, any Taxes for which Seller is liable under Section 6.6 and Taxes attributable to the ownership, operation or use of any of the Project, including the Purchased Assets on or before the Closing Date (ix) except for Taxes for which Purchaser is liable pursuant to Section 3.4 or Section 6.6 hereof); Any liabilities or obligations arising on or prior to the Closing Date from the breach by Seller of, default by Seller under or waiver or extension given by or to Seller with respect to the performance of any Liabilities term, covenant or provision of any of the Purchased Project Contracts, that would have been, but for such breach, default, waiver or extension, paid, performed or otherwise discharged on or prior to the Closing Date or to the extent the same arise out of any such breach, default, waiver or extension; Any liabilities or obligations, including fines, penalties or costs imposed by a Governmental Authority and the costs of any associated defense or response with respect to any of the Project, including the Purchased Assets resulting from an investigation, proceeding, request for information or inspection before or by a Governmental Authority whether pending or commencing on, prior to or after the Closing Date, to the extent based on events or conditions occurring or existing in connection with, or arising out of, or otherwise relating to, the Business or the ownership, possession, use, operation, sale or other disposition on or prior to the Closing Date of any of the Project, including the Purchased Assets (or any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the Business), or actions taken or omissions to act made on or prior to the Closing Date. Any liabilities or obligations of any of Seller Group or their respective directors, officers, members, shareholders or agents, arising out of, or relating to, this Agreement, any of the Ancillary Agreements or any of the transactions contemplated hereby or thereby, whether incurred prior to, on or after the Closing Date, including, without limitation, any and all finder's or broker's fees and expenses, and any and all fees and expenses of any attorneys, accountants or other professionals; Any liabilities or obligations relating to any current, former or future Project Employee or other Person (whether employed by Seller, if any, or any Independent Contractor or any Predecessor-in-Interest) or to any spouse, children, other dependents or beneficiaries of any such Person or any successor-in-interest to any such Person, with respect to incidents, events, exposures or circumstances occurring at any time before or after Closing, in each case whenever any claims arising therefrom or relating thereto mature or are asserted, including all such liabilities and obligations arising (i) under or related to any Project Employee Plan, (ii) under or arising from any claim by any such Project Employees for compensation, severance benefits, any other benefit claims under any Project Employee Plans or applicable Laws, vacation pay, continuation coverage, expenses or any similar type claims arising from employment prior to the Closing or as a result of the consummation of the Transactions, (iii) under any employment, wage and hour restriction, equal employment opportunity, affirmative action, discrimination, retaliation, tort, plant closing or immigration and naturalization Laws or any Law relating to employee benefits, employment discrimination, leave, accommodation, severance, labor relations, hiring or retention, safety, any employment contracts or agreements, wages and hours of employees or any other terms or conditions of employment or any other employment-related matter or workplace issue, including COBRA, (iv) under any collective bargaining agreement, collective bargaining or labor relations Law, or agreement or arrangement with a labor organization or employee representative, (v) under any agreement concerning or relating to such Project Employees or other Persons performing work or services for the direct or indirect benefit of the Project, or (vi) in connection with any workers' compensation or any other employee health, accident, disability or safety claims; but excluding, however, all such liabilities and obligations arising from the actions of Purchaser Group with respect to Project Employees contacted by Purchaser Group for hiring before Closing or arising after Closing with respect to Project Employees hired by Purchaser; Any liabilities or obligations relating to the Business or the Project, including the Purchased Assets (or any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the Business or any of the Purchased Assets), to the extent based on events or conditions occurring or existing on or prior to the Closing Date and arising out of or relating to (i) any dispute arising out of or in connection with capacity of or energy provided or services rendered from the failure Project, including claims for refunds, personal injury or property damage, (ii) claims relating to employee health and safety, including claims for injury, sickness, disease or death of any Person, (iii) any lien described in clause (iii) of the definition of Permitted Encumbrances or any unpaid sums for which any such liens shall have arisen, (iv) claims by an Independent Contractor or other Person utilized or retained for services or work related to or in support of the Project, or (v) compliance with any Laws relating to any of the foregoing; Any liabilities or obligations to the extent based on, relating to or arising from events or conditions occurring or existing in connection with, or arising out of, any and all assets, properties, rights and interests which are not being acquired by Purchaser hereunder, including relating to or arising from the Excluded Assets; Any liabilities or obligations incurred by any of Seller Group or any of its Affiliates their respective directors, officers, shareholders, members, agents or Independent Contractors after the Closing Date (but this paragraph shall not limit the liabilities or obligations for which Purchaser provides indemnification under Section 7.2); Any liabilities or obligations under any of the Purchased Project Contracts which would be included in the Purchased Assets but for the provisions of Section 2.5, except to comply the extent Purchaser is provided with the benefits thereunder as contemplated by such Section; and Any liability representing indebtedness for money borrowed (and any Law or Governmental Orderrefinancing thereof).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Entergy Gulf States Inc)
Excluded Liabilities. Notwithstanding anything contained Except as set forth in Schedule 2.1(c) or any other express provision of this Agreement to the contraryAgreement, Buyer shall have no obligation and is not assumingassume or otherwise become obligated to pay when due, and Seller shall retain and timely payperform or discharge any debts, performclaims, defend and dischargeliabilities, all obligations, damages or expenses of Seller’s Liabilities that do not constitute Assumed Liabilities, the Company or its affiliates (whether disclosed or undisclosed, known or unknown, direct contingent or indirectabsolute, absolute or contingentarising before, secured on or unsecuredafter the Closing Date), liquidated including, without limitation, any (i) liability for Taxes relating to operation of the Business through Closing Date (other than Transfer Taxes and any Taxes that are otherwise expressly attributed to or unliquidated, accrued assumed by Buyer pursuant to this Agreement); (ii) obligations under Contracts of the Company or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect its affiliates not constituting Assumed Contracts; (iii) payment of any amounts pursuant to retention, stay bonus or similar agreements entered into prior to the Closing by the Company or its affiliates; (iv) obligations of the Company or its affiliates incurred in connection with the Company’s operation of business activities other than the Business; (v) obligations related to intellectual property infringement claims arising from the ownership of any of the Purchased Assets or Licensed Assets or the operation of the Business prior to the Closing Date; (vi) obligations with respect to being a member or part of the Company’s control group or affiliated group, or by virtue of being owned or controlled by the Company or its affiliates, under ERISA, or with respect to discrimination, wrongful termination or other employee Table of Contents claims the underlying facts of which relate to the pre-Closing period; (vii) obligations with respect to formerly leased or owned real properties; (viii) obligations with respect to offsite disposal of hazardous substances; (ix) any liability or obligation of the Company or its affiliates arising out of or relating to the execution and delivery of this Agreement, including any claim for payment of fees and/or expenses of a broker, finder or investment banker in connection with the origination, negotiation, execution or consummation of this Agreement based upon any alleged agreement between the claimant and the Company or its affiliates; (x) any liabilities or obligations of the Company or its affiliates for indebtedness other than Assumed Liabilities; (xi) any liability or obligation relating to any Excluded Asset; (xii) any accrued expenses (to the extent not included in the definition of Accounts Payable); (xiii) any severance not reflected in the Net Working Capital on Closing Statement (for the avoidance of doubt, not affecting Buyer’s obligations with respect to Closing Severance Obligations under this Agreement); (xiv) any obligation or liability to any employees other than the Retained Employees and any obligation or liability under any Company Benefit Plan, Liabilities ; (xv) obligations with respect to any Governmental Authority Actions (as defined below) pending or third parties, liabilities assumed threatened prior to the Closing Date or incurred by Seller by arising from the operation of law the Business prior to the Closing Date; (xvi) any intercompany liabilities to Parent, the Company or otherwise any of their affiliates; (xvii) any obligation or liability whatsoever other than the Assumed Liabilities; and (xviii) those items set forth on Schedule 2.1(d) (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Samples: Asset Purchase Agreement (Macrovision Solutions CORP)
Excluded Liabilities. Notwithstanding anything contained Except as set forth in Section 1.1(c) or any other express provision of this Agreement, Buyer shall not assume or otherwise become obligated pursuant to this Agreement to the contrarypay when due, Buyer shall have no obligation and is not assumingperform or discharge any debts, and claims, liabilities, obligations, damages or expenses of Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, (whether disclosed or undisclosed, known or unknown, direct contingent or indirectabsolute, absolute or contingentarising before, secured on or unsecuredafter the Closing Date), liquidated including, without limitation, any (i) liability for Taxes (other than Taxes that are otherwise expressly attributed to or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities assumed by Buyer pursuant to this Agreement); (ii) obligations under Contracts of creditors, Liabilities arising under or in respect Seller not constituting Assumed Contracts; (iii) payment of any Benefit Planamounts pursuant to retention, Liabilities stay bonus or similar agreements entered into prior to the Closing by Seller in connection with or related to the transactions contemplated by this Agreement; (iv) obligations of Seller incurred in connection with Seller’s operation of business activities other than the Business; (v) obligations related to intellectual property infringement claims known to Seller prior to the Closing Date; (vi) obligations with respect to being a member or part of Seller’s control group or affiliated group, or by virtue of being owned or controlled by Seller, under ERISA, or with respect to discrimination, wrongful termination or other employee claims the underlying facts of which relate to the pre-Closing period; (vii) obligations with respect to formerly leased or owned real properties; (viii) obligations with respect to offsite disposal of hazardous substances; (ix) any liability or obligation of Seller arising out of or relating to the execution and delivery of this Agreement, including any claim for payment of fees and/or expenses as a broker or finder in connection with the origination, negotiation, execution or consummation of this Agreement based upon any alleged agreement between the claimant and Seller; (x) any of Seller’s liabilities or obligations for indebtedness other than Assumed Liabilities; (xi) any liability or obligation relating to any Governmental Authority Excluded Asset; (xii) any accrued expenses (to the extent not included in the definition of Accounts Payable); and (xiii) obligations with respect to any Actions pending or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise threatened prior to the Closing Date (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained Except as specifically provided in this Agreement to the contrarySections 3.1 and 3.2 hereof, Buyer shall have no obligation not assume, or in any way become liable for, any liabilities or obligations of Seller or the Business of any kind or nature (including any liabilities or obligations that relate to any (a) Excluded Assets, (b) trade accounts payable, (c) liabilities or obligations relating to the Bay Point Property and is not assumingits operation arising under Environmental Law (including under Environmental Permits and including those arising from Hazardous Substances on, at, under or about the Bay Point Property) arising on or before the Closing Date, and Seller shall retain any liability resulting from the off-site transportation, storage, recycling and timely paydisposal to or on a third party property of any Hazardous Substance generated at the Bay Point Property on or before the Closing Date, perform, defend and discharge, all (d) liabilities or obligations that are owed to any Affiliate of Seller, (e) liabilities with respect to Seller’s Liabilities that do not constitute Assumed Liabilities401(k) Plan, Seller’s Health and Welfare Plans, the Pension Plans and Retiree Medical and Life Plans as described in Article 10 of the Hollister CBA, (f) employment liabilities and obligations for the Retained Employees, (g) unpaid judgments against Seller or unremedied unfair labor practices of Seller, in each case in connection with violations of Employment Related Laws and Obligations by Seller, (h) asserted liability based on Buyer being deemed a successor employer for any purpose under any Employment Related Laws and Obligations, or as a successor for liability purposes under any other laws), in each case whether accrued, absolute, contingent or otherwise, or whether due or to become due, or otherwise, whether disclosed or undisclosed, known or unknown, direct arising out of events, transactions or indirectfacts which shall have occurred, absolute arisen or contingent, secured existed on or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities prior to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise the Closing Date (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred which liabilities and obligations, if ever in connection with the negotiationexistence, preparation, investigation shall continue to be liabilities and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders obligations of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained any provision in this Agreement to the contrary, the Parties expressly acknowledge and agree that Buyer shall have no obligation and not assume, be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of Seller or its Affiliates, whether existing on the Closing Date or arising thereafter (including any Interests or Liabilities of or against any Seller), other than the Assumed Liabilities (all such Liabilities that Buyer is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities assuming are referred to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, collectively herein as the “Excluded Liabilities”). For the avoidance of doubt, including the term “Excluded Liabilities” shall include (and these Liabilities and obligations shall not in any event be Assumed Liabilities): (i) any and all Liabilities of Seller Sellers under an Assigned General Contract arising prior to the Closing (other than the Cure Costs, but subject to the Cure Cap); (ii) all Liabilities arising from the Excluded Assets, including any Liabilities related to the Biocorneum Assets (for the avoidance of doubt, including any Liabilities under any Assigned General Contract or any Potential Assigned General Contract with respect to the Biocorneum Assets); (iii) all Liabilities for any and all Taxes for which Sellers or any of their Affiliates or direct or indirect partners, shareholders, or members is or may be liable, regardless of the taxable period to which such Taxes relate, and any and all Taxes relating to or imposed or payable in connection with the Sale Property to the extent attributable to (or payable in respect of) any pre-Closing tax periods, in each instance regardless of whether such Taxes are assessed or determined to be due or payable on, before or after the Closing; (iv) any Indebtedness or obligation for borrowed money of Sellers; (v) any and all Liability for (1) costs and expenses incurred by Sellers or owed in connection with the administration of the Bankruptcy Case and (2) all costs and expenses of Sellers incurred in connection with the negotiation, preparationexecution, investigation and performance consummation of this Agreement, the other related transactions Transaction; (vi) any and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities all Liabilities arising from or related to the Business operation or ownership condition of the Purchased Assets Sale Property or the Assumed Liabilities prior to the Closing Dateor facts, (iii) any Taxes owing by Seller actions, omissions, circumstances, or any direct conditions existing, occurring or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related accruing with respect to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business Sale Property or the Purchased Assets to the extent such action relates to such operation on or Assumed Liabilities prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, Closing; (vii) any Liabilities arising out of Seller or in connection with claims, Litigation and proceedings (whether instituted prior to or after Closing) for any present acts or former employeesomissions that occurred, officersor arise from events that occurred, directors, retirees, independent contractors or consultants of Seller, prior to the Closing Date including any product Liabilities associated with any claims (other than, for wages or other benefitsthe avoidance of doubt, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, Warranty Obligations); (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior respect to any Interests which will be removed pursuant to the Closing Date, the Business) owing to financial institutions, and Sale Order; (ix) any Liabilities arising out ofunder ERISA or with respect to any employee benefit plans of the Sellers; or (x) any Liabilities for amounts due to any employees of the Sellers, in respect including, without limitation, accrued paid time off or vacation accruals, earned as of or in connection with prior to the failure by Seller or any of its Affiliates to comply with any Law or Governmental OrderClosing.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, The parties specifically acknowledge that Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all assuming any Liability of Seller’s Liabilities that do not constitute , except the Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities related to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law the Acquired Assets or otherwise (collectively, the “Excluded Liabilities”), which Excluded Liabilities include: (a) other than Product Liabilities, any such Liabilities arising at any time (including after the Closing) from the ownership, use or exploitation of the Acquired Assets by Seller or its Affiliates on or prior to Closing; (b) any Liabilities associated with, or arising under, the Excluded Assets; (c) patent and other legal costs and fees relating to the Acquired Intellectual Property that have become due or accrue, arise from or relate to periods prior to Closing; (d) any Liability for Seller’s Indebtedness; (e) any Liability for (i) Taxes of Seller (or any stockholder or Affiliate of Seller) or, with respect to a taxable period or portion thereof ending prior to Closing, relating to the Acquired Assets, (ii) Taxes that arise out of the consummation of the Transaction contemplated hereby, or (iii) other Taxes of Seller (or any stockholder or Affiliate of Seller) of any kind or description, including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of transferee or successor liability or otherwise by operation of contract or Law; (f) any Liability for Seller Transaction Expenses; (g) any and all Liabilities arising under, or in connection with, those items set forth on Schedule 2.5; (h) Liabilities arising under any Contracts to which Seller or any Affiliate thereof is or was a party or otherwise bound, including in respect of the performance or non-performance thereunder that is or was required thereunder; or (i) any Liabilities of Seller arising under, or incurred in connection with with, Seller’s practice under the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and therebyGranted Licenses, including fees and expenses of counselthe making, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business using or ownership selling of the Purchased Assets prior to Nalmefene Implant or the Closing DateHIV Implant, (iii) any Taxes owing whether by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Ordersublicensees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Titan Pharmaceuticals Inc)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to Except for the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed Purchaser shall not assume or undisclosedbe responsible for any Liabilities of any Selling Party or any ERISA Affiliate or other Affiliate of any Selling Party (or any predecessor of Seller or any prior owner of all or part of its business or assets) that are not expressly included in the definition of Assumed Liabilities (all such Liabilities not being assumed by Purchaser being herein referred to as the "Excluded Liabilities"). For the avoidance of doubt, known or unknownthe Excluded Liabilities include all Liabilities of any Selling Party, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities any ERISA Affiliate and their respective Affiliates: (i) for Taxes, Liabilities (ii) relating to a Contract of creditorsSeller that is not an Assumed Contract, Liabilities (iii) arising under this Agreement, (iv) related to a period prior to the Closing in connection with the Business; (v) to the extent arising out of, relating to or otherwise in respect of any Benefit Employee Plan; (vi) to the extent arising out of, Liabilities relating to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending Assumed Contract, which Liability arises after the Closing but relates to any breach or threatened action default that occurred prior to the Closing, (vii) with respect to any accrued bonuses as of the Closing Date of the Business Employees, (viii) arising out of, relating to or otherwise in respect of the operation termination of employment of any Business Employee(s) by Seller in connection with the transactions contemplated by this Agreement, including any severance payments or change of control payments, any obligations under applicable local, state, federal or foreign legal requirements (including the WARN Act and similar Legal Requirements and any applicable business transfer laws and similar Legal Requirements), (ix) with respect to floating holidays, paid time off (PTO), sick leave, or vacation of the Business Employees (except for the Hired Employees), (x) arising out of any Matters pending as of the Closing or that is commenced after the Purchased Assets Closing to the extent such action relates arising from any occurrence or event happening prior to such the Closing, (xi) arising under or in connection with the Excluded Assets, (xii) pursuant to Environmental Laws, including Liabilities arising from or related to (1) the condition or operation on or of any Leased Real Property prior to the Closing Date, (v2) any product Liability other properties or similar claim for injury to a person facilities owned, operated, occupied and/or otherwise used by Seller or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Sellerits Affiliates, or by reason (3) the operation of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising Business prior to the Closing Date, the Business(xiii) owing related to financial institutionsany Excluded Contract, (xiv) arising from any Indebtedness of Seller, , and (ixxv) relating to any intercompany Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates amounts due to comply with any Law or Governmental OrderAffiliates.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained The Assumed Liabilities shall not include: (a) any liability of the Sellers for income taxes, transfer taxes, sales taxes, use taxes and other taxes owed by them and arising before the date of this Agreement, or arising in this Agreement to connection with the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all consummation of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”)transaction contemplated hereby, including any income taxes arising because the Sellers are transferring the Acquired Assets, or because the Sellers have deferred gain on any deferred inter company transaction; (ib) any Liabilities liability of Seller arising or the Sellers for costs and expenses incurred in connection with the negotiation, preparation, investigation and performance this Agreement or consummation of this Agreement, the other related transactions and the transactions contemplated hereby and therebyhereby, including fees and expenses or any liability or obligation of counselthe Sellers under this Agreement; (c) any ERISA or employment benefit plan of Sellers; or (d) any contract of employment or other agreements with Sellers' employees with Sellers; provided, accountantshowever, consultants, advisers and others, (ii) contractual that Purchaser shall assume any liabilities arising from the Business on or ownership after Closing relating to certain employees of the Purchased Assets Sellers who are listed on Schedule 3.2(P); (e) any charge, complaint, action, suit, proceeding, hearing, investigation, claim, demand or litigation relating to breach of contract, breach of warranty, tort, infringement, violation of law, or other matter which arose prior to Closing; (f) liability for claims asserted against Sellers by Black Fox Trading Company regarding copyright infringements relating to certain bear claws relating to acts prior to Closing; (g) the Closing Datetrademark infringement claims made by Xxxxxxx Fasteners regarding alleged use of "dot", "sigma", and "durable dots" relating to acts prior to Closing; (iiih) any Taxes owing claim or allegation by Seller a governmental or any direct or indirect holders of Seller’s Equity Securitiesregulatory entity, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to Closing; (i) the claim of the U.S. Department of Interior regarding violations of the Endangered Species Act relating to acts prior to Closing Dateand the claim of the Federal Trade Commission ("FTC"), the Business) owing to financial institutionsIndian Arts and Crafts Board, and the U.S. Department of the Interior regarding Indian Arts and Crafts relating to acts prior to Closing; and (ixj) any Liabilities arising out ofliability for claims asserted against Tandycrafts, Inc. by Xxxx Xxxxxx and Xxxxxxx Xxxxxx relating to a slip and fall at the former Tandy Leather store in respect of or in connection with Akron, Ohio which occurred prior to Closing (collectively 1.4 (a) - (j) shall be referred to herein as the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order"Excluded Liabilities").
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained in this Agreement Seller acknowledges and agrees that pursuant to the contraryterms and provisions of this Bxxx of Sale, Buyer Purchaser will not assume, or in any way be liable or responsible for, any Liability of Seller (including Liabilities relating to the pre-petition or post-petition operation of the Business, the Excluded Assets or to the Acquired Assets (and the use thereof) or any outstanding checks), whether relating to or arising out of the Business, the Excluded Assets or the Acquired Assets or otherwise, other than the Assumed Liabilities. In furtherance and not in limitation of the foregoing, Purchaser shall have no obligation and is not assumingassume, and shall not be deemed to have assumed, any Liability of any kind or nature whatsoever of Seller shall retain and timely payresulting from, performarising out of, defend and dischargerelating to, all in the nature of, or caused by (a) Indebtedness (other than Acquired Contracts which are capitalized leases), (b) any Excluded Asset or Excluded Agreements, (c) Taxes or escheat obligations of any kind or nature, (d) any Claim arising out of facts, events, circumstances, actions or inactions occurring on or prior to the Closing, (e) any employee benefit plan, (f) any current employees of Seller’s Liabilities that do not constitute , any former employees or any retirees of Seller, or any dependents or beneficiaries thereof, (g) any breach of contract, breach of warranty, tort, infringement or other violation of the rights of another Person (including any Intellectual Property rights) or any lawsuits or violations of Law, (h) any other obligation of Seller or any predecessor or affiliate of Seller whatsoever or any ERISA affiliate other than the Assumed Liabilities, (i) any Liability of Seller arising under the WARN Act (whether disclosed prior to or undisclosedafter Closing), known if any, including any such Liabilities arising out of or unknownresulting in connection with the Closing and/or the consummation of the transactions contemplated by this Bxxx of Sale, direct (j) any claims or indirectLiabilities of, absolute by, from or contingentrelated to Entelos UK, secured Eratosethes and/or Digitalself, or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities any of their creditors, Liabilities arising under employees and/or shareholders, or in respect of (k) any Benefit Plan, Liabilities to any Governmental Authority Post-Petition Accounts Payable or third parties, liabilities Post-Petition Employee Compensation (unless expressly assumed or incurred by Seller by operation of law or otherwise Purchaser) (collectively, any such obligations, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Samples: Bill of Sale (Simulations Plus Inc)
Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement to the contrary, Buyer shall have no obligation and is not assumingor in any Transaction Document, and Seller shall retain and timely pay, perform, defend and discharge, all regardless of Seller’s Liabilities that do not constitute Assumed Liabilities, whether such liability is disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership in any of the Purchased Assets prior Transaction Documents or on any Schedule or Exhibit hereto or thereto, the New LP will not assume, agree to the Closing Datepay, (iii) perform and discharge or in any Taxes owing by Seller way be responsible for any debts, liabilities or any direct or indirect holders obligations of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets Seller, Partners or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of their respective Affiliates of any pending kind or threatened action nature whatsoever, arising out of, relating to to, resulting from, or otherwise caused by any transaction, status, event, condition, occurrence or situation relating to, arising out of or in respect of connection with the operation of Business, the Business Assets, Seller or the Purchased Assets to the extent such action relates to such operation any Partner existing, arising or occurring on or prior to the Closing Date, including, without limitation, any liabilities or obligations relating to or arising from the Excluded Assets (vthe “Excluded Liabilities”). Notwithstanding the foregoing, Seller will contribute into New LP, and New LP will assume and thereafter pay and fully satisfy when due, all liabilities and obligations: (a) any product Liability or similar claim for injury which arose prior to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made the New LP Asset Transfer and represent normal and current trade payables incurred by Seller, or by reason Seller in connection with the operation of the improper performance Business in the ordinary course of business, consistent with past custom and practice, and are specifically set forth on Schedule 1.4(a) (“Accounts Payable”); (b) the other accrued liabilities of Seller which have been incurred in the ordinary course of business, consistent with past custom and practice and which are specifically set forth on Schedule 1.4(b) (“Accrued Liabilities”); and (c) first arising after the New LP Asset Transfer under any Assumed Contract (except for any liability or malfunctioning of a product, improper design obligation arising from any breach or manufacture, failure to adequately package, label or warn perform under any of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising the foregoing prior to the Closing Date) (all such liabilities and obligations to be so contributed into, and assumed by, the Business) owing New LP being collectively referred to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with herein as the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order“New LP Assumed Liabilities”).
Appears in 1 contract
Samples: Asset Contribution and Exchange Agreement (Novamed Inc)
Excluded Liabilities. Notwithstanding anything contained Except as set forth in this Agreement to Section 1.3(a) and (b) above, neither the contrary, Buyer nor any of its affiliates shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all assume any liabilities or obligations of the Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”)SFS Division or any of their respective affiliates or predecessor owners, including (i) or any Liabilities of Seller liabilities or obligations relating to or arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before from the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the SFS Business or the Purchased Assets conduct thereof including, without limitation, (a) breach of product warranties, product liability and liability in tort (including in either case unripened liabilities due to Products manufactured by or on behalf of Seller, any affiliate or predecessor owner of the extent such action relates to such operation on Seller, the SFS Division or the SFS Business or any other manufacturer, or liabilities from actions or sales occurring prior to the Closing DateEffective Time), (vb) any product Liability or similar claim indebtedness for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Sellerborrowed money, (vic) any recall, design defect or similar claims of any products manufactured or sold or any service performed by SellerTax liabilities, (viid) any Liabilities of Seller for any obligations to present or former employees, officersagents, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages representatives or other benefitspersonnel, bonuses accrued vacation, workers’ compensation, severance, retention, termination (e) contract or other paymentsagreements not constituting an Assumed Contract, (viiif) all liabilities relating to the Excluded Assets, (g) all liabilities for the violation or breach of any Liabilities associated with debt, loans or credit facilities of Seller Environmental Laws (or, if as hereinafter defined) and (h) all liabilities for trade and consumer promotions arising prior to the Closing DateEffective Time, in any case whether known or unknown, fixed or contingent, absolute, conditional or otherwise. Without limiting the generality of the foregoing, the Business) owing to financial institutionsSeller, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller SFS Division or any of their respective affiliates or predecessor owners, as the case may be, shall remain solely and exclusively liable for all liabilities or obligations as a result of any act, omission or event occurring prior to the Effective Time, whether or not the related cause of action or damage occurred after the Effective Time. All liabilities and obligations retained by the Seller, its Affiliates affiliates or predecessor owners as described in this Section 1.4, are collectively referred to comply with any Law herein as the "Excluded Liabilities." After the Effective Time, the Seller shall, directly or Governmental Orderindirectly, discharge and satisfy in full when due the Excluded Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Williams J B Holdings Inc)
Excluded Liabilities. Notwithstanding anything else contained in this Agreement to the contraryAgreement, Buyer Purchaser shall have no obligation and is not assumingassume, and Seller shall retain and timely payor in any way become liable for, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, any Liabilities of creditors, Seller other than the Assumed Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller or its Affiliates (i) arising out of or relating to Seller’s ownership or operation of the Business and the Purchased Assets prior to the Closing Date, (ii) for (A) Taxes of any and all types as a result of or relating to the operations of the Business, the ownership of the Purchased Assets or the Assumed Liabilities prior to the Closing and (B) any other Taxes of Seller or any stockholders or Affiliates of Seller for any taxable period, (iii) relating to or arising out of the employment, or termination of employment, of any Employee prior to the Closing, including any Liabilities under any severance, bonus, change of control or termination agreement (including any “transaction bonuses” or “success fees”), or similar compensation payable to any Employees in connection with (A) any period ending on or prior to the Closing Date or (B) the transactions contemplated by this Agreement, or under the Seller Employee Plans or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, or health care plans or benefits, including with respect to any accrued and unused vacation for any Continuing Employees and any Liabilities associated with any Seller Employee Plans, (iv) arising or accruing under any Excluded Contract, (v) arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions Transaction Documents and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (iivi) contractual liabilities arising from or accruing under any Assumed Contract relating to any period on or prior to the Business Closing Date, or ownership arising out of the Purchased Assets or in connection with any breach, default, violation or non-performance of Seller under any Assumed Contract prior to the Closing Date, (iiivii) any Taxes owing by Seller arising out of, related to or any direct or indirect holders of in connection with Seller’s Equity Securities, including but not limited to: (A) non-compliance with any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments Applicable Laws or other assessments for public or municipal improvements that are assessed or imposed pursuant Orders prior to any lease agreement effective before the Closing Date, and (Bviii) associated with any other TaxesEmployees who do not become Continuing Employees, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets (ix) relating to any such Taxesamounts payable to any equityholders of Seller, including for any accrued but unpaid dividends, (ivx) any Liabilities in with respect of any pending to events occurring on or threatened action prior to the Closing Date arising out ofof or in connection with workers’ compensation claims, relating (xi) associated with any Seller Employee Plans, including any employment, severance, retention, termination or collective bargaining agreement or other Contract with any Employee or any labor union, (xii) under or with respect to COBRA (or otherwise similar state continuation coverage law) with respect to any Seller Employee Plan, (xiii) arising out of or in respect of the operation of the Business or the Purchased Assets connection with any Legal Proceeding to the extent such action Legal Proceeding arises out of or relates to such operation events occurring on or prior to the Closing Date, (vxiv) with respect to any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants Indebtedness of Seller, including any Liabilities all accrued interest, prepayment premiums or penalties related thereto, and (xv) associated with any claims for wages the making, servicing or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities facilitating of Seller (orRALs, if arising any, on or prior to the Closing Date, the Business) owing to financial institutions, and (ixxvi) with respect to any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental OrderExcluded Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Meta Financial Group Inc)
Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement to the contraryand regardless of whether such liability is disclosed herein or on any schedule or exhibit hereto, Buyer shall have no obligation and is not assuming, and neither Purchaser nor any of its Affiliates will assume or be liable for any liabilities or obligations of Seller shall retain and timely pay, perform, defend and discharge, all or any of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including its Affiliates (i) any Liabilities of Seller arising to the extent not related to the Business or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from out of, related to, resulting from, in the nature of or caused by any (A) Taxes, except as provided in Section 5.13 (regardless of when incurred), (B) indebtedness for borrowed money or deferred purchase price for property or any cash overdrafts of the Business arising on or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller Date or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation outstanding checks of the Business or the Purchased Assets to the extent such action relates to such operation incurred on or prior to the Closing Date, (vC) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representationintercompany payables, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards intercompany loans or other related product defects intercompany liabilities of any products at any time manufactured kind or sold or any service performed by Sellernature, (viD) any recall, design defect or similar claims of any products manufactured or sold or any service performed by SellerExcluded Asset, (viiE) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller matter disclosed on Schedule 2.13 hereto (or, which otherwise would have been required to be disclosed on such Schedule if arising prior to prepared as of the Closing Date) or any litigation, claim or assessment of any kind or nature which is commenced (by the Business) owing filing of a complaint or the like or the presentation of a written claim to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply Affiliates) with any Law court or Governmental Ordersimilar legal or administrative authority or any mediator or arbitrator (or, in the case of a written claim, by presentation of such claim to Seller or any of its Affiliates) at any time on or prior to the Closing (including any customer litigation, breach of contract, breach of warranty, tort, infringement, violation of law or environmental matter), including any such matter disclosed in the Schedules hereto, (F) facts, events or circumstances related to the Business' relationship with Birmingham Steel Corporation, Microfibres, Inc., Agrilink, Eskimo Pie Corporation, Cherrydale Farms, Foxboro Company (Invensys)/Ken's Foods, Foxboro Company/Alto Dairy, Shamrock Foods Company, Sugar Creek Packaging Company, Gulf States Steel, Inc., Xxxxxxxxxx.xxx, Xxxxxxxx Brands International, Inc. or Westin or (G) deferred revenue liability, which will be treated as specified in Section 1.7 hereof (in each case with respect to any of the matters specified in this Section 1.2(b), whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated and whether due or to become due) (the "Excluded Liabilities").
Appears in 1 contract
Samples: Asset Purchase Agreement (Systems & Computer Technology Corp)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance other provision of this Agreement, the liabilities and obligations of Sellers which are not to be assumed by Purchaser hereunder (the "Excluded Liabilities") are the following: (a) all liabilities arising out of or Relating to the Excluded Assets (other than those liabilities arising out of or Relating to Purchaser's use of the Technology Licenses or the Composite Marks or the Mobil Marks pursuant to the Transition License Agreement); (b) the following liabilities (collectively, the "Excluded Environmental Liabilities"): (i) all liabilities resulting from (x) the existence or imposition of any obligation under any Environmental Law to remediate (including related transactions sampling, investigating and monitoring) or to contribute or pay any amount towards remediation (including related sampling, investigating and monitoring) at any property (other than the transactions contemplated hereby Owned Real Property or the Leased Real Property) to which the Plastics Business disposed or arranged for the disposal of Hazardous Substances prior to the Closing, (y) the remediation (including related sampling, investigating and therebymonitoring) described on Schedule 2.4(b)(i), including fees and expenses (z) any Environmental Claims pending as of counsel, accountants, consultants, advisers and others, the Closing; (ii) contractual subject to Section 5.11, 75% of all liabilities arising resulting from any obligation imposed prior to the second anniversary of the Closing Date (whether or not all expenditures actually have been made prior to such date) under any Environmental Law (as in effect on the Closing Date) for remediation (including related sampling, investigating and monitoring) of any and all of the matters described in Schedule 2.4(b)(ii) (other than Compliance Costs) to the level of clean-up required by Environmental Laws (including applicable cleanup guidance manuals promulgated by federal or state environmental agencies) as in effect on the Closing Date, but not including costs of any sampling or other investigation (including legal and other professional fees) incurred by Purchaser to identify or confirm the presence of contamination; provided, however, that the aggregate amount of Excluded Environmental Liabilities comprehended by this clause (ii) and therefore to be borne by Sellers shall not exceed $10 million; and (iii) subject to Section 5.11, all liabilities in excess of the first $20 million incurred by Purchaser resulting from the Business imposition of any obligation under any Environmental Law (as in effect on the Closing Date) to remediate (including related sampling, investigating and monitoring) any and all contamination by Hazardous Substances at Owned Real Property or ownership of Leased Real Property (excluding any and all matters referred to in clause (i) or (ii) above and excluding Compliance Costs) attributable to activities on the Purchased Assets Owned Real Property or Leased Real Property prior to the Closing Date, and arising from facts unknown to Purchaser at the Closing and discovered following the Closing (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before excluding liability resulting from a change in Environmental Law following the Closing Date); provided, and (B) any other Taxeshowever, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect that Purchaser notifies Seller of the operation identification of the Business or the Purchased Assets to the extent such action relates to such operation on or liability prior to the seventh anniversary of the Closing Date, Date (vwhether or not all expenditures are actually made prior to such date); (c) any product Liability or similar claim for injury to a person or property which arises all liabilities arising out of the actions, suits, proceedings, disputes, claims or is based upon any express investigations identified in Schedule 2.4(c); (d) all obligations and liabilities to Former Employees, and Employees who are not employed by Purchaser, with respect to periods ending prior to, on or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to after the Closing Date; (e) all liabilities to Employees under the Mobil Plans and any short- term disability, long-term disability and workers compensation benefits under the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.Mobil Plans for
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained Except as expressly set forth in Section 2(d) or 2(f), the Buyer shall not assume or be responsible at any time for any Liability of the Seller, including, but not limited to, any Liabilities, obligations, debts, or commitments of the Seller arising out of any action taken by the Seller prior to, or incurred prior to, the Closing, or incident to, arising out of or incurred with respect to, this Agreement to and the contrarytransactions contemplated hereby, and the Seller expressly acknowledges and agrees that the Seller shall retain, and that the Buyer shall have no obligation and is not assuming, and Seller shall retain and timely assume or otherwise be obligated to pay, perform, defend defend, or discharge (for example and dischargenot by way of limitation) (i) any Liability of the Seller for Taxes other than Taxes expressly set forth in Section 2(f); (ii) any Liability of the Seller in connection with any Employee Benefit Plan; (iii) any Liability of the Seller or prior owner(s) of the Premises under any Environmental, all of Health, and Safety Laws related to or arising from ownership, use of, or operations at, the Premises through the Closing; (iv) any product liability pertaining to products sold, leased, rented, or manufactured prior to the Closing; (v) any obligations to the Seller’s present or previous employees and all Liabilities relating to the Seller’s employment practices; (vi) any Liability for workers’ compensation or other claims related to incidents, injuries, illnesses, or property damage that do not constitute Assumed Liabilitiesoccur prior to the Closing; (vii) except as set forth in Section 7(e), whether disclosed any Liability, obligations or undisclosedfiduciary duties associated with the Seller’s 401(k) plan; (x) any Liability or obligation associated with the Consulting Agreement by and between the Seller and Xxxx Xxxxxxx dated February 4, known 2003, (ix) the Seller’s reserve account with the State of California Employment Development Department; and (x) any Liability or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising obligation associated with stock options outstanding under or in respect of any Benefit the Seller’s 1994 Incentive Stock Option Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise as amended (collectively, the “Excluded Liabilities”), including (i) any . The Seller further agrees to satisfy and discharge as the same shall become due all Liabilities of the Seller arising or incurred in connection with not specifically assumed by the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental OrderBuyer hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pinnacle Data Systems Inc)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to Except for the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed the Purchaser will not acquire any interest in, or undisclosedobligations in respect of, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, any Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by the Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including . The Excluded Liabilities include: (i) any Liabilities of Seller arising or incurred Liability in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and othersrespect to Excluded Taxes, (ii) contractual liabilities arising from the Business or ownership all Liabilities with respect to any indebtedness for borrowed money of the Purchased Assets prior to the Closing DateSeller, (iii) any Taxes owing by Seller all Liabilities arising out of or any direct or indirect holders of relating to the Seller’s Equity Securitiesemployment, including but not limited to: (A) engagement, potential employment or engagement or termination of employment or engagement of any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such TaxesPerson, (iv) any all Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets Acquired Contracts to the extent such action relates Liabilities (A) but for a breach or default by the Seller, would have been paid, performed or otherwise discharged in accordance with their terms prior to the Closing, (B) arise out of a breach or default by the Seller prior to the Closing or (C) otherwise arise from or relate to any act, omission, occurrence or period of time prior to the Closing, (v) all accounts payable or accrued expenses of the Seller except for Purchaser’s Prorated Portion of expenses and costs set forth in the Proration Schedule, (vi) all Liabilities arising out of or relating to any Employee Benefit Plan, (vii) all Liabilities arising prior to Closing out of the ownership of the Purchased Assets or operation of the Business, (viii) any Liability of the Seller arising out of or under this Agreement, (ix) any broker fees of the Seller, (x) all Liabilities arising out of or relating to the Excluded Assets; (xi) all Liabilities of Seller arising from or relating to the DRL Purchase Agreement (other than any Liabilities with respect to the Partially Assigned APA that are expressly assumed by Purchaser pursuant to the Assignment and Assumption Agreement Regarding DRL Contracts); and (xii) all Liabilities arising out of or relating to any product liability, breach of warranty or similar claim for injury or other harm to person or property (regardless of whether such operation claim is first asserted prior to, on or after the Closing Date), which result from the use or misuse of Products sold on or prior to the Closing Date, (v) any product Liability Date or similar claim for injury otherwise related to a person the Products sold on or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing Date (including all Legal Proceedings relating to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Ordersuch liabilities).
Appears in 1 contract
Samples: Asset Purchase Agreement (Tonix Pharmaceuticals Holding Corp.)
Excluded Liabilities. Notwithstanding anything contained in this Agreement It is understood and agreed that Buyer shall not assume or be liable for (i) any Transaction Expenses that remain unpaid or are incurred by Seller or Holding Company following Closing, (ii) third party costs and expenses incurred by Seller relating to the contrarynegotiation or consummation of the Transactions (including the winding-up, Buyer shall have no obligation liquidation and is not assuming, dissolution or Seller) and Seller shall retain the preparation and timely pay, perform, defend and discharge, all filing of Seller’s Liabilities that do not constitute Assumed Liabilitiesfinal income tax returns, whether disclosed including without limitation, fees and expenses of counsel, accountants or undisclosedinvestment bankers, known (iii) any federal, state, county or unknownlocal taxes of Seller (including any liability under Section 280G or 4999 of the Code), direct (iv) any liabilities of Seller for federal, state, county or indirectlocal income taxes on the Purchase Price, absolute (v) any liability or contingentobligation of Seller under the Excluded Contracts, secured (vi) any liabilities under any Employee Benefit Plan maintained, administered or unsecuredcontributed to by Seller other than liabilities and obligations under the Split Dollar Arrangements, liquidated (vii) any liabilities related to accrued vacation or unliquidatedpaid time off owing to employees, accrued independent contractors or otherwiseother persons, whether Liabilities for Taxesincluding Former Seller Employees, Liabilities of creditorswhich Seller shall be permitted to payout prior to Closing, Liabilities arising under or in respect of (viii) any Benefit Plan, Liabilities liability relating to any Governmental Authority Wrongful Acts of Seller or third partiesHolding Company, (ix) any liabilities assumed related to or incurred by Seller by operation arising out of law the Excluded Assets; or otherwise (x) any liabilities related to Securities Claims (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with . Notwithstanding the negotiation, preparation, investigation and performance of this Agreementforegoing, the other related transactions parties elect the “alternate procedure” pursuant to IRS Revenue Procedure 2004-53, 2004-2 C.B. 320, and agree that Buyer shall be considered a “successor employer” for employment Tax purposes and that Buyer shall assume responsibility for filing all employment Tax Returns (including for any activity in “pre-Closing” periods) for the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership of the Purchased Assets prior to year in which the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such action relates to such operation on or prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.occurs; and
Appears in 1 contract
Samples: Purchase and Assumption Agreement (First Financial Northwest, Inc.)
Excluded Liabilities. Notwithstanding anything contained All of the Liabilities of Sellers or -------------------- any other Person, whether arising or to be paid, performed or discharged prior to, at, or after the Closing which are not expressly included in this Agreement to the contrary, Buyer shall have no obligation and is not assuming, and Seller shall retain and timely pay, perform, defend and discharge, all of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, including the following: (i) all Liabilities of creditorsSellers to their Affiliates, including accounts payable and accrued expenses; (ii) all Liabilities arising of Sellers under this Agreement (including the indemnification obligations of Sellers under Article VIII hereof) and any agreement executed pursuant hereto or contemplated hereby; (iii) all legal, accounting, brokerage, and finder's fees, if any, or other expenses incurred by Sellers in connection with this Agreement or the consummation of the transactions contemplated hereby, (iv) all Liabilities relating to the Excluded Assets; (v) all Liabilities under any Benefit Plans; (vi) [Intentionally Omitted]; (vii) all Liabilities with respect to the employment, termination of employment, including a constructive termination, or failure to employ by Sellers of any individual in connection with the Credit Card Business (including any Employee) attributable to any actions or inactions prior to the Closing Date; (viii) any Liability relating to the Cardholder Agreements or the pending Credit Card Applications to the extent such Liability arises in connection with Sellers' ownership or use of, or acts or omissions with respect to, the Cardholder Agreements or the pending Credit Card Applications prior to the Closing Date; (ix) any Liability with respect to the conduct of the Credit Card Business prior to the Closing Date; (x) any Liability in respect of Sellers' accounts payable; (xi) any Liability for or in respect of the payment of any Benefit Plan, Liabilities Taxes or Income Taxes arising out of or relating to any Governmental Authority the ownership or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectively, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, (ii) contractual liabilities arising from the Business or ownership use of the Purchased Credit Card Assets or the conduct of the Credit Card Business prior to the Closing Date, (iii) and, except as otherwise expressly provided in Section 7.5 of this Agreement, any Taxes owing by Seller Liability for or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant to any lease agreement effective before the Closing Date, and (B) any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation payment of any Taxes and Income Taxes payable by Sellers as a result of the Business consummation of the transactions specified in this Agreement; (xii) any Liability with respect to any goods and services sold by Sellers or any of their Affiliates, including any Liability under any contract between any Seller of any of such Sellers' Affiliates and a Cardholder relating to goods or services purchased by such Cardholder; (xiii) any Liability with respect to any litigation as of the Closing Date (including any litigation relating to the Securitization Trust or the Purchased Assets Securitization Assets); and (xiv) any Liabilities related to the extent such action relates Securitization Trust or the Securitization Assets arising out of or relating to such operation on the ownership or use of the Credit Card Assets or the conduct of the Credit Card Business prior to the Closing Date, (v) any product Liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained Except as expressly set forth in this Agreement to SECTION 1.1(C), the contrary, Buyer shall have no obligation not assume or be responsible at any time for any liability, obligation, debt or commitment of the Company, whether absolute or contingent, accrued or unaccrued, asserted or unasserted, or otherwise (the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Company expressly acknowledges and is not assumingagrees that the Company shall retain, and Seller that Buyer shall retain and timely not assume or otherwise be obligated to pay, perform, defend and or discharge, all any liability or obligation incident to, arising out of Seller’s Liabilities that do not constitute Assumed Liabilities, whether disclosed or undisclosed, known or unknown, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether Liabilities for Taxes, Liabilities of creditors, Liabilities arising under or in respect of any Benefit Plan, Liabilities to any Governmental Authority or third parties, liabilities assumed or incurred by Seller by operation of law or otherwise (collectivelywith respect to, the “Excluded Liabilities”), including (i) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other related transactions Agreement and the transactions contemplated hereby (including any and thereby, including legal or other fees and expenses of counselexpenses, accountantsall sales, consultants, advisers and others, (ii) contractual liabilities income or other taxes arising from the Business or ownership out of the Purchased Assets transactions contemplated hereby; without limiting the generality of the foregoing, Seller shall promptly file a New York bulk sale tax notice and remit any and all sale taxes due in respect of the sale of assets contemplated in this transaction to be paid by Buyer at Closing); for taxes whether measured by income or otherwise, in connection with any Plan or Benefit Program or Agreement (as defined in SECTION 3.7), including, without limitation, any liability of the Company under ERISA, under any foreign, federal, state or local law, rule, regulation, ordinance, program, Permit, or other Legal Requirement relating to health, safety, Hazardous Materials and environmental matters applicable to the Company's business and/or the facilities Used by the Company (whether or not owned by the Company), pertaining to products sold or manufactured or services performed or other actions taken or omitted by the Company prior to the Closing Date, (iii) any Taxes owing by Seller or any direct or indirect holders of Seller’s Equity Securities, including but not limited to: (A) any ad valorem Taxes, including real estate and personal property Taxes, waste disposal assessments or other assessments for public or municipal improvements that are assessed or imposed pursuant relating to any lease agreement effective default taking place before the Closing Date, and (B) Date under any other Taxes, whether related to the Business, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any such Taxes, (iv) any Liabilities in respect of any pending or threatened action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets Assumed Obligations to the extent such action relates to such operation on default created or prior to increased the Closing Date, (v) any product Liability liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Sellerobligation, or by reason of for Funded Indebtedness or accrued interest, fees or penalties with respect thereto. The Company agrees to satisfy and discharge the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, (vi) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, (vii) any Excluded Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, bonuses accrued vacation, workers’ compensation, severance, retention, termination or other payments, (viii) any Liabilities associated with debt, loans or credit facilities of Seller (or, if arising prior to as the Closing Date, the Business) owing to financial institutions, and (ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Ordersame shall become due.
Appears in 1 contract
Samples: Asset Purchase Agreement (Colonial Commercial Corp)
