Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”): (i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby); (ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness); (iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule; (iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing; (v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary); (vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand; (vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder; (viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal; (ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby; (x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets; (xi) any Liability related to or arising out of the Restructuring; (xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and (xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).
Appears in 2 contracts
Sources: Purchase Agreement (Owens & Minor Inc/Va/), Purchase Agreement (Halyard Health, Inc.)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Seller shall retain or assume, as applicableretain, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall not assume or have any responsibility forfor paying, the following performing or discharging, any Liabilities of Parent or Seller and its Affiliates other than the Assumed Liabilities (the “Excluded Liabilities”):
(i) those Liabilities not relating ). Without limiting the foregoing, neither Buyer nor its Affiliates shall be obligated to or arising out assume, and none of them do assume, and each of them hereby disclaims responsibility for, any of the Business following Liabilities of Seller and its Affiliates:
2.6.1 any Liabilities of Seller or the Purchased Assets (any of its Affiliates attributable to any asset, property or right that is not included in the case Acquired Assets;
2.6.2 any Liabilities of those Seller or any of its Affiliates attributable to the research, development or other activity by Seller or any Affiliate related to the Acquired Assets on or prior to the Closing Date;
2.6.3 all Liabilities shared by of Seller or any of its Affiliates arising under the Business and Transferred Agreement prior to the Medical Device Business, only Closing Date to the extent that portion of such Liabilities are not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to any failure by Buyer or arising from any Parent Plan or for which Parent or of its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by comply with the Buyer or its Affiliates pursuant to terms thereof after the Transfer Regulations (and whichClosing Date, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) other than those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure ScheduleSchedule 2.5.2 attached hereto;
(iv) those 2.6.4 all Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent Seller or any of its Affiliates arising prior to the Closing Date that give rise to Permitted Encumbrances on the Acquired Assets;
2.6.5 all Liabilities of (i) Seller for Taxes for any Tax period that are not attributable to the Acquired Assets or Assumed Liabilities, and (ii) for Taxes attributable to the Acquired Assets for any Tax periods (or portions thereof) ending on or before the Closing Date, in each case other than the Transferred Subsidiaries), on the one hand, any Taxes for which Buyer is liable pursuant to Sections 5.9.2 and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand5.9.3;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) 2.6.6 all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent of Seller or any of its Affiliates to or with respect to any of its or their Representatives in connection with or relating to an Acquisition Proposalemployees and their beneficiaries;
(ix) 2.6.7 all Liabilities arising from or relating to any Actions involving Parent of Seller or any of its directors or officers relating Affiliates with respect to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability Ongoing Clinical Trials except to the extent it relates such Liabilities are attributable to an act or omission by or on behalf of Buyer or any of its Affiliates;
2.6.8 subject to Section 3.5 and ARTICLE 9, all Liabilities of Seller or any of its Affiliates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period[***] to the extent such Liabilities are not attributable to a failure, determined in accordance whether by an act or omission, by Buyer or any of its Affiliates to comply with the principles of Section 7.01covenants set forth in this Agreement related to the [***]; and
2.6.9 all Liabilities of Seller or any of its Affiliates that arise prior to the Closing Date, including from operation of Seller’s business, that are not (xiiia) any Liability arising out specifically included in the definition of the failure to advertise the transactions contemplated by Assumed Liabilities, or (b) described in Subsections 2.6.1 through 2.6.8 in this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 definition of the Insolvency Act (South Africa)Excluded Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Kronos Bio, Inc.), Asset Purchase Agreement (Kronos Bio, Inc.)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Buyer shall retain or assume, as applicable, not assume and shall not be responsible for payingto pay, performing and discharging when due, and none perform or discharge any of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent Sellers or its their respective Affiliates (each, an “Excluded Liability”, and collectively, the “Excluded Liabilities”):
(ia) those except for the Current Liabilities and the Assumed Liabilities, any Liabilities arising out of or relating to any Seller’s ownership or operation of the Business, the Transferred Assets or the Purchased Subsidiary prior to the Closing Date solely to the extent such Liabilities are not within the scope of any representation or warranty set forth in Article IV (whether or not indemnification with respect to such Liabilities would be available as a result of any limitations on indemnification set forth in Article VIII);
(b) any Liabilities to the extent relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Assets;
(iic) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims all Indebtedness (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior Indebtedness to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary extent included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiaryset forth in the Final NWC Statement);
(vid) all intercompany payables Taxes of Sellers and loans between Parent their respective Affiliates that are attributable to taxable periods (or portions thereof) ending on or prior to the Closing Date (determined, as applicable, in accordance with Section 6.05), any income Taxes of its Sellers and their respective Affiliates (other than triggered on the sale of the Transferred Subsidiaries), on Assets or the one handTransferred Interests, and any Affiliates of Parent Transfer Taxes for which Sellers are liable pursuant to Section 6.05 (other than the Transferred Subsidiariesbut excluding, in each case, those Taxes for which Buyer is responsible pursuant to Section 6.05), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixe) all Liabilities arising from out of or relating to the employment of any Actions involving Parent Business Employee (or any dependent or beneficiary of any Business Employee) by Sellers and/or their Affiliates, to the extent arising out of events occurring solely prior to the Closing Date, including any failure by Sellers or their Affiliates to comply with its directors obligations under Regulation 13 of TUPE, except to the extent that any such Liabilities are expressly assumed by Buyer under Section 6.01;
(f) except for the Assumed Liabilities and any Liabilities set forth in the Transition Services Agreement, any Liabilities of Sellers arising under or officers in connection with any Benefit Plan providing benefits to any Business Employee prior to the Closing Date;
(g) the Liabilities arising under Pre-Closing Warranty Claims solely to the extent set forth in Section 6.28;
(h) any Liabilities of the Business relating to or arising out of this Agreement from unfulfilled commitments, quotations, purchase orders, customer orders or work orders issued by the transactions contemplated hereby;
(x) any Liability Business’ customers to Sellers or their respective Affiliates on or before the extent it relates to or arises out of any Excluded Asset or is Closing that do not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out constitute part of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Transferred Assets; and
(xiiii) any Liability Liabilities of Sellers arising out or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the failure to advertise Ancillary Agreements and the transactions contemplated by this Agreement by Halyard Health South Africa hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others (Pty) Ltd. under but excluding those Taxes or the costs and expenses for which Buyer is responsible pursuant to Section 34 of the Insolvency Act (South Africa6.05, Section 6.15 and Section 6.16).
Appears in 2 contracts
Sources: Purchase Agreement (American Virtual Cloud Technologies, Inc.), Purchase Agreement (Ribbon Communications Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary in Section 2.02(a2.3 or this Agreement, but subject to, for the avoidance of doubt, any covenant or agreement contained in this Agreement (other than Section 2.3) or Section 2.02(b) in any Ancillary Agreement where Purchaser or any of its Affiliates has expressly agreed to the contraryassume, as of satisfy, discharge, perform when due, bear or otherwise be liable for any Liabilities, from and after the Closing, the Delayed Closing or any applicable Later Closing, Parent or Seller and its Affiliates shall retain or assume, as applicable, and shall be remain responsible for payingand satisfy, performing discharge and discharging perform when due, and none Purchaser shall have no obligation with respect to all of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (collectively, the “Excluded Liabilities”):
(ia) those all Liabilities not for Taxes, other than Assumed Liabilities (collectively, the “Excluded Tax Liabilities”);
(b) except as otherwise provided in Section 5.7, all Liabilities to the extent relating to or arising out of the Business Indebtedness of Seller or the Purchased Assets (in the case any of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)its Affiliates;
(iic) those except to the extent otherwise specifically provided in this Agreement, all fees, costs and expenses incurred or payable by Seller, Burgundy or any of their Affiliates in connection with the transactions contemplated by this Agreement and the Ancillary Agreements and the consummation or performance thereof or otherwise in connection with Seller’s, Burgundy’s or any of their respective Affiliates’ solicitation, discussion or negotiation of strategic alternatives involving the Program Business prior to the date hereof, in each case, that are unpaid as of the Closing, including to professionals (including investment bankers, attorneys, accountants, brokers and other consultants and advisors) retained by Seller, Burgundy or any of their respective Affiliates that performed services in connection with the negotiation of this Agreement and the Ancillary Agreement and execution of this Agreement, the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, in each case, that are unpaid as of the Closing;
(d) all Liabilities to the extent relating to or arising from out of (i) any Parent Plan Business Employee who is not a Transferred Employee at any time prior to, on or after the Closing Date (or, as the case may be, in the case that the French Put Option Exercise, for which Parent any French Employee on or its Affiliates after the date of the French Deferred Closing or, in the case that the Dutch Consultation Procedures are responsible pursuant to Article VI but excluding Employment Related Liabilities not completed as provided in respect Section 2.12(b), for any Dutch Employee who is not a Transferred Employee on or after the date of the Dutch Deferred Closing), and (ii) any Continuing Transferred Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant at any time prior to the Transfer Regulations (and whichClosing, for including, all Liabilities to the avoidance of doubt, are intended extent relating to be included within or attributable to such employee’s work or employment prior to the definition of Indebtedness)Closing or any claim relating to or attributable to facts that occurred prior to the Closing;
(iiie) those Liabilities set forth on except as otherwise provided in Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those 2.3(f), all Liabilities relating to or arising out of product warranty obligations any Benefit Plan;
(express f) all Liabilities in respect of any Action, whether or implied) and product liability claims (other than product not presently threatened, asserted or packaging complaints that do not arise pending, to the extent relating to or arising out of injury to person or property and other than product recalls) for products the conduct of the Program Business sold or the operation of the Transferred Assets prior to the Closing, including, without limitation, all Liabilities to the extent Purchaser is required to pay or bear any cost to a Transferred Employee attributable to such employee’s work or employment prior to the Closing or any claim based on facts that occurred prior to the Closing;
(vg) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Liabilities listed on Schedule 2.4(g) to this Agreement;
(vih) all intercompany payables and loans between Parent Liabilities arising out of or related to any noncompliance by Seller or any of its Affiliates (other than the Transferred Subsidiaries)Affiliates, on the one hand, and employees or agents with any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handapplicable Law;
(vii) (Ai) all obligations Liabilities for product liability, product defect, personal injury or any tort arising out of Parent the manufacture, marketing or its Affiliates to sale of the Product or any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating Variant thereof prior to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderClosing;
(viiij) all Liabilities relating in respect of Environmental Laws or Hazardous Substances to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers the extent relating to or arising out of this Agreement the conduct of the Program Business or the transactions contemplated herebyoperation of the Transferred Assets prior to the Closing;
(xk) all Liabilities in respect of any Liability Product returns to the extent it relates to or arises out they arise from the sale of any Excluded Asset or is not primarily related the Product prior to the Business or the Purchased Assets;Closing, which will be handled as set forth in Schedule 2.4(k); and
(xil) any Liability related all other Liabilities that are not the subject of clause (a) through (k) of this Section 2.4 to the extent relating to or arising out of the Restructuring;
(xii) without limiting Transferred Assets, the rights and obligations of Product or any Variant thereof or the parties under Article VIIProgram Business, any Liability for Taxes relating to other than the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Assumed Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Amgen Inc), Asset Purchase Agreement (Celgene Corp /De/)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall will not assume or have any responsibility forwith respect to any Liability of Sellers (or any predecessor or Affiliate of Sellers) of any nature whatsoever not expressly included within the definition of Assumed Liabilities, the following Liabilities of Parent or its Affiliates including, without limitation:
(the “Excluded Liabilities”):
a) Taxes (i) those Liabilities not relating to or arising out of the Business or the Purchased Assets imposed on any Seller for any period (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and whichincluding, for the avoidance of doubt, are intended to be included within the definition of IndebtednessTransfer Taxes);
, or (iiiii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury related to person or property and other than product recalls) for products of the Business sold or the Purchased Assets for all Tax periods (or portions thereof) ending prior to the Closing;
(vb) all accounts payableany costs or expenses incurred in connection with, Expenses or related to, the administration of the Bankruptcy Cases, including, without limitation, any accrued professional fees and Indebtedness expenses of Parent or its Affiliates (attorneys, accountants, financial advisors and other than accounts payable of any Transferred Subsidiary included professional advisors related to the Bankruptcy Cases, in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiaryeach case, except as expressly set forth in Section 3.1(b);
(vic) all intercompany payables and loans between Parent Liabilities to the extent arising out of or related to the Excluded Assets;
(d) Liabilities under any insurance policy issued by American International Group Inc., The Hartford Insurance Group Inc. or any of its Affiliates their respective Affiliates;
(e) Liabilities of Sellers under this Agreement or the Seller Documents;
(f) all Liabilities which may become due or owing under the Purchased Contracts (i) with respect to the period prior to the Closing (other than the Transferred Subsidiaries), on Cure Amounts) or (ii) after the one hand, and Closing but which arise out of or relate to any Affiliates of Parent breach that occurred prior to the Closing (other than the Transferred SubsidiariesCure Amounts), on the other hand;
(vii) (Ag) all obligations Indebtedness owed by any Seller or any predecessor of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions Seller except as expressly contemplated by this the Restructured First Lien Credit Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderthe Restructured Second Lien Credit Agreement;
(viiih) all Liabilities relating any Employee Obligations to any confidentiality, non-solicitation or similar agreements entered into Employee arising out of such Employee’s employment by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition ProposalSellers;
(ixi) all any Liabilities arising from under or otherwise relating to Sellers’ Store General Manager Bonus Program;
(j) any Actions involving Parent or Employee Claim of any of its directors or officers relating to or Employee arising out of this Agreement or the transactions contemplated herebysuch Employee’s employment by Sellers;
(xk) any WARN Act Liabilities arising on or prior to the Closing Date;
(l) any Claim arising prior to Closing and not expressly assumed pursuant to this Agreement;
(m) any Liability to the extent it relates to any stockholder or arises out other equity holder of any Excluded Asset Seller or is not primarily related to the Business or the Purchased Assetsany predecessor of any Seller;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiiin) any Liability arising out of the failure or related to advertise the transactions contemplated by this Agreement by Halyard Health South Africa any Legal Proceeding commenced or threatened against any Seller or any predecessor of any Seller;
(Ptyo) Ltd. under Section 34 any Liability for infringement or misappropriation of any intellectual property arising out of or related to any conduct of any Seller or operation of the Insolvency Act Business on or before the Closing;
(South Africap) any Liability, whether administrative, civil or criminal in nature, relating to any Liquor License or the sale or service of alcohol beverages thereunder, where the circumstances upon which such Liability is predicated occurred prior to the Closing unless expressly assumed by Buyer;
(q) except for the costs pursuant to the Designation Rights Budget to the extent set forth in Section 2.7(c), any Liability of any Seller based upon any Seller’s acts or omissions occurring before or after the Closing unless expressly assumed by Buyer;
(r) any Liability under that certain (i) Exclusive License Agreement between Champ's Restaurants, Inc. and Champp's Entertainment, Inc. and (ii) Master Agreement between Champ's Restaurants, Inc. and Champp's Entertainment, Inc.; and
(s) all other Liabilities and obligations for which Buyer does not expressly assume any liability, including without limitation any Liabilities listed on Schedule 5.9 (collectively, the “Excluded Liabilities”).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Steel Partners Holdings L.P.), Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) any other provision of this Agreement to the contrary, as of the ClosingBuyer Parties are not assuming and the Seller Parties shall pay, perform or otherwise satisfy, all Liabilities other than the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Assumed Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):), including the following:
(ia) those all Liabilities not to the extent arising out of or relating to the conduct or arising out operation of the Business or the Purchased ownership or use of the Transferred Assets prior to the Closing, except for any Liabilities expressly included within the Assumed Liabilities;
(b) Liabilities for Excluded Taxes;
(c) Seller Transaction Expenses;
(d) all Liabilities in the case respect of those Liabilities shared Released Products sold by the Business and before the Medical Device BusinessClosing, only that portion of such Liabilities not attributable including any obligations for Rebates to the Business shall be excluded herebyextent allocated to Seller pursuant to Section 5.18(b), except for the Assumed Liabilities pursuant to Section 2.3(e);
(iie) those Liabilities arising out of or relating to Actions or arising from any Parent Plan threatened Actions to the extent involving or for which Parent or its Affiliates are responsible pursuant relating to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by the operation of Law by the Buyer Business or its Affiliates pursuant the Transferred Assets prior to the Transfer Regulations (and whichClosing, except for the avoidance of doubt, are intended to be any Liabilities expressly included within the definition of Indebtedness)Assumed Liabilities;
(iiif) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities any Liability pursuant to any Law arising from or relating to any action, event, circumstance or arising out of product warranty obligations (express condition occurring or implied) and product liability claims (other than product existing on or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (Bg) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any Liability arising in respect of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or Workers other than those expressly assumed by Buyer pursuant to Section 5.5, including any and all (i) employment-related Liabilities arising through the Closing Date in respect of its directors or officers relating to or all Transferred Employees and other Workers, (ii) Liabilities arising out from the termination of this Agreement or the transactions contemplated hereby;
(x) any Liability Workers prior to the extent it relates Closing, (iii) Liabilities under any Employee Plan, (iv) Liabilities arising from the failure to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out provide continuation coverage required by Section 4980B of the Restructuring;
Code (xii“COBRA”) without limiting with respect to Workers or their respective beneficiaries for whom a “qualifying event” occurs on or before the rights Closing, (v) workers’ compensation and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets other similar claims asserted by or with respect to any Pre-Workers or their respective beneficiaries in respect of any injury or other compensable event or occupational illness or disease that occurred or is attributable to any event, state of facts or conditions that existed or occurred in whole or in part prior to the Closing, (vi) obligations to reimburse Workers for business expenses incurred before the Closing Tax Period, determined and (vii) Liabilities relating to Workers who are not Business Employees;
(h) any indebtedness for borrowed money or guarantees thereof outstanding as of the Closing Date or intercompany obligations of any Seller Party;
(i) accounts payable of the Seller Parties incurred in accordance connection with the principles operation of Section 7.01the Business prior to the Closing; and
(xiiij) any Liability arising out of the failure or obligation relating to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)an Excluded Asset.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Silicon Laboratories Inc.), Asset Purchase Agreement (Skyworks Solutions, Inc.)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, as Purchaser shall not assume or be liable for any of the Closingfollowing obligations or liabilities of Seller and its Subsidiaries (collectively, the Delayed Closing or any applicable Later Closing"Excluded Liabilities"), Parent or and Seller and its Affiliates Subsidiaries shall retain or assume, as applicableretain, and shall continue to be responsible for paying, performing and discharging when dueafter the Closing Date for, and none of Buyer or shall forever indemnify and defend Purchaser and its Affiliates shall assume or have any responsibility for, and hold them harmless from and against all of the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”)::
(ia) those Liabilities not relating to or arising out of the Business or the Purchased Assets any and all inter- and intra-company payables (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of except for such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities payables set forth on in Section 2.02(c)(iii1.1(f) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiaryLetter);
(vib) the 100 Oaks Liability;
(c) any and all intercompany payables Liabilities for (x) Taxes of Seller or any Affiliate thereof or (y) Taxes that are imposed by any taxing authority with respect to taxable periods ending on or prior to the Closing Date that result from, arise out of or relate to the Portfolio, in all cases except as otherwise provided in Section 1.9 (in respect of certain prorated items for the calendar year in which the Closing occurs as provided therein) and loans between Parent Section 4.7 (Transfer and Gains Taxes);
(d) subject to Sections 3.1(d) and 4.12, any and all Employee Liabilities;
(e) any and all obligations or other Liabilities to the extent resulting from, arising out of, or relating to the Tax Protection Agreement (as defined in the Merger Agreement) and any obligation of Seller or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and to indemnify any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handPerson for Taxes;
(viif) any and all obligations and other Liabilities arising out of or in connection with any negligent action or negligent omission that results in a breach of any of Seller's covenants or agreements set forth in either (i) clause (1) of Section 3.1(a) or (ii) Section 3.1(b) (A) all obligations except during the time when Purchaser is managing, pursuant to Section 3.1(d), the relevant Portfolio Property and such action or omission was among the responsibilities of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating Purchaser pursuant to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderManagement Agreement);
(viiig) any and all obligations and other Liabilities relating arising out of or in connection with Seller's violation of Section 3.1(a) or Section 3.1(b) to any confidentiality, non-solicitation or similar agreements entered into by Parent the extent that such violation results from Seller's or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
Subsidiaries' (x) any Liability failure to the extent it relates to pay Taxes, debts or arises out other obligations when due, (y) incurrence of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets new indebtedness with respect to any Pre-Closing Tax Period, determined in accordance with the principles Portfolio Property or (z) sales or other dispositions or transfers of any Portfolio Property;
(h) all items of income and expense that are assumed by Seller pursuant to Section 7.011.9; and
(xiiii) any Liability arising other Liabilities that do not result from, arise out of or relate to the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Portfolio except as otherwise specifically provided herein.
Appears in 2 contracts
Sources: Transaction Agreement (Affordable Residential Communities Inc), Transaction Agreement (Chateau Communities Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii2.02(b)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;; and
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).
Appears in 2 contracts
Sources: Purchase Agreement (Owens & Minor Inc/Va/), Purchase Agreement (Halyard Health, Inc.)
Excluded Liabilities. Notwithstanding anything Except as set out in Section 2.02(a) 2.3 above, the Purchaser Group does not assume and will not be liable for any obligations or Section 2.02(b) to the contrary, as liabilities of the ClosingVendor Group whatsoever including, without limiting the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none generality of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):foregoing:
(ia) those Liabilities not relating to or any liabilities and obligations (including Claims) arising out of or based upon the Business Vendor Group’s ownership of the Assets or operation of the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Businessand/or Subsidiaries, only that portion of such Liabilities not attributable relating to the Business shall be excluded herebyperiod up to the Time of Closing other than the Assumed Liabilities (whether or not arising prior to or following the Time of Closing);
(iib) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect Indebtedness of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to Vendor Group (other than the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Assumed Indebtedness);
(iiic) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Scheduleany single-trigger or lump sum transaction bonuses or retention bonuses payable to Transferred Personnel;
(ivd) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the ClosingExcluded Tangible Liabilities;
(ve) all accounts payable, Expenses and Indebtedness of Parent any obligations or its Affiliates (other than accounts payable liabilities arising at any time in respect of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent employees or any of its Affiliates (contractors other than the Transferred Subsidiaries)Personnel;
(f) any obligations or liabilities arising at any time in respect of any real property leases or sub-leases other than the Office Leases;
(g) all Taxes that may be or become payable by the Vendor’s Group with respect to a Pre-Closing Tax Period, on including: (i) any Tax liability of the one hand, and Vendor’s Group; (ii) any Affiliates Taxes resulting from or arising as a consequence of Parent the sale by the Vendor Group to the Purchaser Group of the Assets herein contemplated (other than any Transfer Taxes required to be borne by Purchaser (on behalf of the Transferred SubsidiariesPurchaser Group) pursuant to Section 7.2 hereof), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement ; and (Biii) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out Taxes of the Restructuring;
(xii) without limiting Subsidiaries that may be or become payable by the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets Subsidiaries with respect to any Pre-Closing Tax Period, determined ;
(h) any liabilities of the Vendor’s Group arising or incurred in accordance connection with the principles negotiation, preparation, investigation and performance of Section 7.01; andthis Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby;
(xiiii) any Liability liabilities relating to or arising out of the failure Excluded Assets (which, for the avoidance of doubt, shall exclude any costs, expenses, or any other liabilities arising under the Transition Services Agreement (whether in connection with the performance of such Transition Services Agreement or pursuant to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 terms of the Insolvency Act Transition Services Agreement)); or
(South Africa)j) any Claims, liabilities or other obligations of the Vendor Group not directly related to or associated with the Purchased Business; provided, however, that all Taxes attributable to the ownership or operation of the Assets (including, for the avoidance of doubt, the Subsidiaries) or the Purchased Business during any Post-Closing Tax Period (excluding income or capital gains taxes from the sale of Assets or Purchased Business pursuant to this Agreement) are the responsibility of the Purchaser Group. For the purposes of this Agreement, ad valorem taxes, property taxes and other Taxes attributable to the ownership or operation of the Assets or the Purchased Business shall be prorated based on the percentage of the assessment period occurring before the Closing Date, and the portion allocable to any Post-Closing Tax Periods shall be for the account of the Purchaser Group.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Synchronoss Technologies Inc), Asset Purchase Agreement (Synchronoss Technologies Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) Neither Buyers nor any of their Affiliates shall assume, nor shall they be or Section 2.02(b) to the contrarybecome responsible for, as any Liabilities and Claims of the Closing, the Delayed Closing Business or of Sellers or any applicable Later Closingof Sellers’ Affiliates other than the Assumed Liabilities (collectively, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). Without limiting the generality of the foregoing, the following shall constitute the Excluded Liabilities notwithstanding any other provision of this Agreement:
(a) all Liabilities for (i) those Taxes with respect to the Transferred Assets for any Pre-Closing Tax Period, including Property Taxes allocable to Sellers pursuant to Section 8.6, (ii) Taxes imposed on any member of the Transferred Group pursuant to Treasury Regulations
Section 1. 1502-6 (or any similar provision of state, local, or non-U.S. Law) by reason of the Liability of any Person other than any such member, and (iii) Sellers’ share of Transfer Taxes as described in Section 8.7;
(b) all Liabilities and Claims of the Retained Business;
(c) all Liabilities and Claims which would not be imposed on Buyer Parent, Buyers, or any of their Affiliates (including any members of the Transferred Group) but for the Pre-Closing Reorganization and any Seller-Requested Section 338 Election, including any associated costs, fees, Taxes or expenses relating to or arising out the Pre-Closing Reorganization and any Seller-Requested Section 338 Election;
(d) Liabilities and Claims of Transferred Group to the extent not Related to the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities that arise out of, relate to or are in connection with matters arising under the securities laws or Claims brought by its securityholders or in the name of a Transferred Entity by its securityholders, in each case with respect to or to the extent relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold periods prior to the Closing;
(ve) all accounts payable, Expenses Liabilities and Indebtedness Claims related to the Seller Benefit Plans or to any employees of Parent the Sellers or its Affiliates (their Subsidiaries other than accounts payable of any Transferred Subsidiary included the Business Employees or, to the extent specified in Section 2.3(f), the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Former Business Employees;
(vif) all intercompany payables and loans between Parent or any of its Affiliates (other than Liabilities under the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handEntity Benefit Plans with respect to Non-Business Employees;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viiig) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or and Claims that are transaction expenses arising out of this Agreement or and the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Transactions; and
(xiiih) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South AfricaLiabilities and Claims set forth on Schedule 2.4(h).
Appears in 2 contracts
Sources: Master Purchase Agreement (Allergan PLC), Master Purchase Agreement (Teva Pharmaceutical Industries LTD)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicableThe Assumed Liabilities do not include, and the Purchaser shall not assume and shall not be responsible for payingto pay, performing and discharging when dueperform, and none of Buyer satisfy or its Affiliates shall assume or have discharge, any responsibility forLiabilities that are not Assumed Liabilities, including the following Liabilities of Parent or the Seller and its Affiliates Subsidiaries other than the Transferred Entities (the “Excluded Liabilities”):
(i) those all Liabilities not relating to or arising out of the Business Seller and its Subsidiaries (other than Liabilities of the Transferred Entities) for Taxes, other than the Assumed Taxes or the Purchased Assets (Taxes reflected or accounted for in the case of those Liabilities shared by the Business and the Medical Device BusinessClosing Net Working Capital, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and whichincluding, for the avoidance of doubt, are intended all Taxes arising out of or in respect of the consummation of the transactions contemplated by this Agreement to be included within the extent the amount of such Taxes, together with the Employee Costs Amount and the amount of the other Transaction Expenses, exceeds the Cap;
(ii) all Indebtedness (other than, to the extent primarily related to the Business or the Purchased Assets, Indebtedness of the types specified in clauses (b) and (d) of the definition of Indebtedness);
(iii) those all Excluded HR Liabilities set forth on Section 2.02(c)(iii) (without prejudice to the Purchaser’s obligations under this Agreement with respect to payment of the Seller Disclosure ScheduleEmployee Costs Amount);
(iv) those all Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products in respect of the Business sold prior Employee Costs Amount and the Transaction Expenses to the Closingextent the aggregate amount of such Liabilities exceeds the Cap;
(v) all accounts payable, Expenses the Seller’s and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in Subsidiaries’ obligations under this Agreement and the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Ancillary Agreements;
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent Action brought by or on behalf of any stockholder of the Seller or the SEC, as the case may be, against the Seller with respect to books and records demands, any disclosures to or filings with the SEC made by the Seller (other than Liabilities arising out of any information supplied by the Purchaser or any of its Affiliates (including for this purpose any Vintage Person), any breach or alleged breach of fiduciary duties by the board of directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting Seller, Rule 10b-5 promulgated under the rights and obligations of the parties under Article VII, Exchange Act or any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01other similar securities laws or stockholder Action; and
(xiiivii) all Liabilities arising under or pursuant to any Liability arising out of Transferred Contract, other than the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Assumed Contract Liabilities.
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (Liberty Tax, Inc.), Equity and Asset Purchase Agreement (Sears Hometown & Outlet Stores, Inc.)
Excluded Liabilities. Notwithstanding It is expressly understood and agreed that, notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, as of Assumed Liabilities shall not include the Closingfollowing (collectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”"EXCLUDED LIABILITIES"):
(ia) those Liabilities not relating except to the extent expressly assumed pursuant to the provisions of Sections 1.6(a) through 1.6(k), inclusive, all debts, liabilities or arising out obligations of the Business or Asset Sellers to the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not extent they are attributable to the Asset Sellers= business other than the Analytical Instruments Business shall be excluded hereby)as conveyed to Buyer on the Closing Date pursuant to this Agreement;
(b) all liabilities or obligations of any Asset Seller in the nature of Indebtedness, including any obligation or liability under any contract or agreement relating to the same; as used in this Agreement, "INDEBTEDNESS" of any Person means, without duplication, (i) all indebtedness of such Person for borrowed money, (ii) those Liabilities relating all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments (or reimbursement obligations with respect thereto), other than letters of credit incurred by such Person in the Ordinary Course of Business, (iii) all obligations of such Person to pay the deferred and unpaid purchase price of property or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities services, other than trade payables and accrued expenses incurred in the Ordinary Course of Business and (iv) all capitalized lease obligations of such Person;
(c) all liabilities and obligations in respect of any Continuing Employee which are employee relations and benefits not expressly assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Section 6 hereof;
(iiid) those Liabilities set forth on Section 2.02(c)(iii) of the liabilities or obligations under foreign currency contracts to which any Asset Seller Disclosure Scheduleis a party;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(ve) all accounts payableobligations with respect to intercompany receivables, Expenses and Indebtedness of Parent notes or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and Seller or any Affiliates of Parent its other subsidiaries (other than the excluding Transferred Subsidiaries), on the other hand, except as listed in Section 1.7(e) of the Seller Schedule and except for trade payables or receivables relating to the provision of goods or services to or by the Analytical Instruments Business in the Ordinary Course of Business;
(viif) liabilities arising from or in connection with the discontinued operations of the Analytical Instruments Business not attributable to the Analytical Instruments Business as conveyed to Buyer on the Closing Date pursuant to this Agreement;
(Ag) all obligations liabilities arising out of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xih) any Liability related to or arising out except as otherwise expressly provided herein, (i) all liabilities and obligations for Taxes of the Restructuring;
(xii) without limiting Asset Sellers and the rights Transferred Subsidiaries in any jurisdiction for all taxable periods ending on or before the Closing Date, and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-taxable periods beginning before the Closing Tax Period, determined in accordance with Date and ending after the principles of Section 7.01; and
(xiii) any Liability arising out of Closing Date to the failure extent allocable to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).the
Appears in 2 contracts
Sources: Purchase Agreement (Eg&g Inc), Purchase Agreement (Eg&g Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as of except for the ClosingAssumed Liabilities specifically described in Section 2.3 (it being understood that if a Liability could be construed to be described in both Section 2.3 and Section 2.4, the Delayed Closing then it shall be deemed an Excluded Liability), Purchaser shall not assume or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicablebe liable for, and shall be responsible for paying, performing and discharging when due, and none of Buyer deemed not to have assumed or its Affiliates shall assume or have any responsibility be liable for, any of the following Liabilities of Parent or its Affiliates the Sellers (collectively, the “Excluded Liabilities”):), which Excluded Liabilities include:
(ia) those all Liabilities arising out of Excluded Assets, including Contracts that are not relating Assumed Contracts or Assumed Executory Contracts;
(b) except for the Assumed Liabilities described in Schedule 2.3(d), Liabilities (whether known or unknown) arising from the sale of Products of Inventory prior to the Closing, whether pursuant to product warranties, product recalls, returns and rebates or otherwise;
(c) except as provided in Article IX, all Liabilities with respect to all employee benefit plans, policies, agreements and arrangements of the Sellers and their Affiliates, including all Employee Plans, and any Liability to or in respect of, or arising out of or in connection with, the Business employment by any of the Sellers or cessation of employment with any of the Purchased Assets (in Sellers of any employees or independent contractors or former employees or independent contractors of any of the case of those Liabilities shared by the Business and the Medical Device BusinessSellers, only including any severance obligations that portion of such Liabilities not attributable arise on or prior to the Business shall be excluded hereby)Closing Date;
(iid) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, except for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Assumed Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included described in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred SubsidiariesSchedule 2.3(d), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any for (i) Taxes of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
Sellers (ix) including all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets Assets) for any Tax periods (or portions thereof) ending on or before the Closing Date and (ii) Transfer Taxes;
(e) Liabilities incurred in the Ordinary Course of Business and existing prior to the filing of the Chapter 11 Cases that are subject to compromise under the Bankruptcy Code (the “Compromised Liabilities”);
(f) any Debt of Sellers;
(g) all Liabilities relating to amounts required to be paid by Sellers hereunder;
(h) all Liabilities associated with brokers, finders or other consultants or advisors to Sellers entitled to a fee or reimbursement of expenses with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01this transaction; and
(xiiii) any Liability all other Liabilities, accrued expenses, accounts payable of Seller arising out of from or associated with the failure Business or the Permits arising from events, facts or circumstances occurring before the Closing, except to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)extent expressly identified as an Assumed Liability.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New Century Energy Corp.), Asset Purchase Agreement (New Century Energy Corp.)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary contained in this Agreement, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or Buyer and its Affiliates shall retain not assume by virtue of this Agreement or assumeany Other Transaction Agreement, as applicableor the transactions contemplated hereby or thereby, or otherwise, and shall have no liability for, and Sellers shall retain and be fully responsible for paying, performing and discharging when due, any and none of Buyer or its Affiliates shall assume or have any responsibility for, the following all Liabilities of Parent Sellers or its any of their Affiliates other than the Assumed Liabilities (collectively, the “Excluded Liabilities”):): Without limiting the generality of the foregoing, the Excluded Liabilities include:
(ia) those any Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities Sellers in respect of any Continuing Employee which Excluded Assets or other assets of Sellers that are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)not Purchased Assets;
(b) (i) any Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets, the Assumed Liabilities or the Business that are incurred in, or attributable to, any Pre-Closing Tax Period (such Taxes for a Straddle Period to be allocated in accordance with Section 7.1); (ii) any Transfer Tax allocated to Sellers under Section 7.3; (iii) those Liabilities set forth on Section 2.02(c)(iii) any Taxes imposed under, or triggered by, any applicable “bulk sales”, “bulk transfer” or similar Laws as a result of the Seller Disclosure Schedule;
transactions contemplated by this Agreement, other than Transfer Taxes payable pursuant to Section 7.3; (iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent withholding Taxes imposed on Buyer or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to resulting from the transactions contemplated by this Agreement and Agreement, to the extent not withheld pursuant to Section 2.8; (Bv) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentialityTaxes imposed with respect to, non-solicitation or similar agreements entered into by Parent or any arising out of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent Excluded Asset or Excluded Liability; and (vi) any Taxes imposed on the Sellers or any of its directors their Affiliates other than Taxes allocated to Buyer pursuant to this Agreement;
(c) any fines and penalties imposed by any Governmental Entity resulting from any act or officers relating omission of Sellers and not related to or the Purchased Assets and any Liabilities arising out of, in respect of or in connection with the failure by Sellers or any of Sellers’ Affiliates to comply with any Law or Order;
(d) any Liabilities of Sellers arising as a result of their execution and delivery of this Agreement or any Other Transaction Agreement, the performance of Sellers’ obligations hereunder or thereunder or the consummation by Sellers of the transactions contemplated herebyhereby or thereby;
(xe) any Liability to the extent it relates to Liabilities of Sellers or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes their Affiliates relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles current or former employees or independent contracts of Section 7.01Sellers or its Affiliates; and
(xiiif) any Liability arising out indebtedness for borrowed money of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Sellers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Digital Media Solutions, Inc.), Asset Purchase Agreement (Digital Media Solutions, Inc.)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Buyer shall retain or assume, as applicable, not assume and shall not be responsible for payingto pay, performing and discharging when due, and none perform or discharge any of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent Sellers or its their respective Affiliates (each, an “Excluded Liability”, and collectively, the “Excluded Liabilities”):
(ia) those except for the Current Liabilities and the Assumed Liabilities, any Liabilities arising out of or relating to any Seller’s ownership or operation of the Business, the Transferred Assets or the Purchased Subsidiary prior to the Closing Date solely to the extent such Liabilities are not within the scope of any representation or warranty set forth in Article IV (whether or not indemnification with respect to such Liabilities would be available as a result of any limitations on indemnification set forth in Article VIII);
(b) any Liabilities to the extent relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Assets;
(iic) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims all Indebtedness (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior Indebtedness to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary extent included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiaryset forth in the Final NWC Statement);
(vid) all intercompany payables Taxes of Sellers and loans between Parent their respective Affiliates that are attributable to taxable periods (or portions thereof) ending on or prior to the Closing Date (determined, as applicable, in accordance with Section 6.05), any income Taxes of its Sellers and their respective Affiliates (other than triggered on the sale of the Transferred Subsidiaries), on Assets or the one handTransferred Interests, and any Affiliates of Parent Transfer Taxes for which Sellers are liable pursuant to Section 6.05 (other than the Transferred Subsidiariesbut excluding, in each case, those Taxes for which Buyer is responsible pursuant to Section 6.05), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixe) all Liabilities arising from out of or relating to the employment of any Actions involving Parent Business Employee (or any dependent or beneficiary of any Business Employee) by Sellers and/or their Affiliates, to the extent arising out of events occurring solely prior to the Closing Date, including any failure by Sellers or their Affiliates to comply with its directors obligations under Regulation 13 of TUPE, except to the extent that any such Liabilities are expressly assumed by Buyer under Section 6.01;
(f) any Liabilities of Sellers arising under or officers in connection with any Benefit Plan providing benefits to any Business Employee prior to the Closing Date;
(g) the Liabilities arising under Pre-Closing Warranty Claims solely to the extent set forth in Section 6.28;
(h) any Liabilities of the Business relating to or arising out of this Agreement from unfulfilled commitments, quotations, purchase orders, customer orders or work orders issued by the transactions contemplated hereby;
(x) any Liability Business’ customers to Sellers or their respective Affiliates on or before the extent it relates to or arises out of any Excluded Asset or is Closing that do not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out constitute part of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Transferred Assets; and
(xiiii) any Liability Liabilities of Sellers arising out or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the failure to advertise Ancillary Agreements and the transactions contemplated by this Agreement by Halyard Health South Africa hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others (Pty) Ltd. under but excluding those Taxes or the costs and expenses for which Buyer is responsible pursuant to Section 34 of the Insolvency Act (South Africa6.05, Section 6.15 and Section 6.16).
Appears in 2 contracts
Sources: Purchase Agreement (American Virtual Cloud Technologies, Inc.), Purchase Agreement (Ribbon Communications Inc.)
Excluded Liabilities. Notwithstanding anything in the provisions of Section 2.02(a) or Section 2.02(b) 1.4, it is expressly understood and agreed that there shall be excluded from the Liabilities and obligations being assumed by Purchaser and/or its Designated Affiliates hereunder (and to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, extent that the following Liabilities and obligations have been incurred by any Acquired Company, Seller and its Subsidiaries (other than its Acquired Companies) shall assume and be solely responsible for) the following Liabilities and obligations of Parent Seller or any of its Affiliates Subsidiaries (collectively, the “Excluded Liabilities”):
(ia) those All Liabilities of Seller or any of its Subsidiaries (including any Acquired Company) not Related to the Business, including all Liabilities primarily relating to or arising out of the Business or the Purchased Assets (assets, business lines, rights, contracts and claims specified in the case of those Liabilities shared by the Business Sections 1.3(h) and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby1.3(i);
(iib) those all Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates Subsidiaries (other than the Transferred SubsidiariesAcquired Companies) is expressly made responsible pursuant hereto or the Transition Agreements;
(c) all Liabilities to the extent related to any Excluded Asset;
(d) all Excluded Taxes;
(e) except as set forth on Schedule 1.5(e), all intercompany receivables, payables, loans and investments (i) between Seller or any of its Subsidiaries (other than an Acquired Company), on the one hand, and Seller or any Affiliates of Parent its Subsidiaries (other than the Transferred Subsidiariesan Acquired Company), on the other hand, or (ii) required to be settled in accordance with Section 6.5;
(vii) (Af) all obligations of Parent Liabilities assigned to or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated retained by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderSeller under Section 10.1;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixg) all Liabilities arising from under or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any PreBusiness Contracts to the extent related to any Excluded Real Property;
(h) except to the extent provided in Section 1.4(m) (Assumed Liabilities) and subject to the provisions set forth in Article XI, all Environmental Liabilities whether or not Related to the Business, provided, however, with respect to Historical Off-Closing Tax PeriodSite Environmental Liabilities, determined such Liabilities shall be subject to the procedures set forth in accordance with Section 11.4;
(i) all Liabilities to the principles extent arising out of Legal Proceedings relating to the matters constituting Excluded Liabilities specified in the foregoing clauses (a) – (h) of this Section 7.011.5;
(j) all Liabilities to the extent relating to the Deleted Parcels and other real property not conveyed (including through the Acquired Companies) to Purchaser (or its designee) hereunder; and
(xiiik) any Liability arising out the Indebtedness of the failure to advertise Business other than (i) the transactions contemplated by this Agreement by Halyard Health South Africa Assumed Indebtedness; and (Ptyii) Ltd. under Section 34 the Indebtedness of the Insolvency Act (South Africa).Business reflected, or expressly reserved for, in the Estimated Closing Date Working Capital Statement, as the same may be adjusted in the Closing Date Working Capital Statement
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (NewPage Energy Services LLC), Equity and Asset Purchase Agreement (NewPage Holding CORP)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) Buyer will not assume, nor will it agree to pay, perform or Section 2.02(b) discharge, any Liability of Seller or any Affiliate of Seller, whether or not arising from or relating to the contrary, as conduct of the ClosingBusiness or the Acquired Assets (such Liabilities which are not being assumed, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). Without limiting the generality of the prior sentence, the Excluded Liabilities will include the following:
(a) any Liability to pay any Taxes of Seller or any of its Affiliates;
(b) any Liability of Seller or its Affiliates for performance under this Agreement or the Seller Ancillary Agreements;
(c) any Liability under any Assumed Contract arising prior to the Closing Date or relating to any breach, violation, default or failure to perform by Seller or its Affiliates that occurred prior to the Closing Date;
(d) any Liability relating to any Indebtedness of Seller or its Affiliates;
(e) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date, including the Pre-Closing Payables but excluding the Assumed Payables;
(f) any Liability with respect to any Proceeding arising from the operation of the Business prior to the Closing Date;
(g) any Liability relating to the Excluded Assets;
(h) any Liability under any Seller Benefit Plan, including all Liabilities for or arising from any health care continuation coverage required to be provided under Section 4980B of the Code and Sections 601-608 of ERISA (“COBRA”) to employees, former employees and any other COBRA qualified beneficiaries with respect to Seller or any ERISA Affiliate, including those who incur a COBRA qualifying event in connection with the Transactions;
(i) those all employment related Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (EzFill Holdings Inc), Asset Purchase Agreement (EzFill Holdings Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to Buyer is only causing the contrary, as of the Closing, the Delayed Closing New Operating Company (or any applicable Later Closing, Parent or its Affiliates shall retain or assumeAdditional Acquisition Entities, as applicable) to assume the Assumed Liabilities from Seller and the Retained Subsidiaries and is not assuming any other Liability of Seller or any of its Retained Subsidiaries of whatever nature, and whether presently in existence or arising hereafter. All such other Liabilities shall be responsible for paying, performing retained by and discharging when due, and none remain Liabilities of Buyer Seller or its Affiliates shall assume or have any responsibility forRetained Subsidiaries, the following as applicable (all such Liabilities of Parent or its Affiliates (not being assumed being herein referred to as the “Excluded Liabilities”):), including but not limited to the following:
(ia) those except for accounts payable included in the final determination of Closing Date Net Working Capital, all Liabilities not to the extent arising out of or relating to the operation or conduct by Seller or any of its Retained Subsidiaries of the Retained Business, whether arising prior to, on or after the Closing Date (including, subject to Buyer’s obligations under Section 5.05, any Liabilities under any Shared Contracts);
(b) all Liabilities to the extent arising out of or relating to any Excluded Asset, whether arising prior to, on or after the Closing Date;
(c) all Liabilities relating to the Transferred Employees (other than those expressly assumed by Buyer pursuant to Section 2.04(f) or (h)) and Employee Plans (other than those expressly assumed by Buyer pursuant to Section 2.04(f) or (h)) and all other Liabilities relating to all employee benefit plans (other than the Employee Plans) that have been maintained or contributed to by the Seller or any of the Seller’s ERISA Affiliates;
(d) all Liabilities arising out of the Business or the Purchased Assets (in the case employment of those Liabilities shared by the Business Employees by Seller and the Medical Device Business, only that portion of such Liabilities not attributable its Affiliates prior to the Business shall be excluded herebyTransfer Time, other than those that are expressly assumed by Buyer pursuant to Section 2.04(f) or (h);
(iie) those except for the Specified Retention Bonuses, all Liabilities relating for (1) any sale, change-of-control, retention or stay bonus, or, (2) subject to Buyer’s compliance in all material respects with all of its obligations under Sections 7.01 and 7.02 with respect to the applicable Business Employee, any severance amount, in each case the payment of which is triggered by the transactions contemplated by this Agreement (including payments that are conditioned on a Business Employee’s continued employment with the Buyer following the Closing Date and including the employer portion of payroll Taxes thereon), in each case if such Liability is pursuant to a Contract entered into by Seller or arising from any Parent Plan or for which Parent or of its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant prior to the Transfer Regulations (and whichClosing Date, provided that, for the avoidance of doubt, the Liabilities described in this Section 2.05(e) do not include any Liabilities assumed by Buyer under Section 7.02(g) of this Agreement, which are intended to be included within the definition of Indebtedness)Assumed Liabilities;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(vf) all accounts payableLiabilities for severance amounts paid, Expenses and Indebtedness payable or otherwise owing to any employee of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent Seller or any of its Affiliates (other than the that does not become a Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handEmployee;
(viig) all of Seller’s or the Retained Subsidiaries’ or the Purchased Subsidiary Companies’ liabilities or obligations for Indebtedness, including Indebtedness arising under any capitalized lease constituting an Assumed Contract;
(h) (Ai) all obligations of Parent Seller for Transfer Taxes under Section 6.01, (ii) the portion of any Property Taxes allocated to Seller or its Affiliates the Retained Subsidiaries under Section 6.02, (iii) all Taxes of Seller or the Retained Subsidiaries (including Taxes related to or arising from the Business or the Purchased Assets for any Pre-Closing Tax Period but excluding, for the avoidance of doubt, any Taxes related to or arising from the Business or the Purchased Assets for any Post-Closing Tax Period), (iv) any Taxes of the Seller or the Retained Subsidiaries under Section 1.1502-6 of the United States Treasury Regulations (or any similar provision of state, local or foreign Law) or otherwise by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date, and (v) any Taxes of the Seller or the Retained Subsidiaries as a result of being a transferee of or successor to any Person, or as a result of any express or implied obligation to indemnify any other Person, by contract or otherwise;
(i) all obligations to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions commission relating to the transactions contemplated by this Agreement and (B) any other fees or and expenses for which Parent or its Affiliates are expressly Seller is responsible for hereunderpursuant to Section 11.03;
(viiij) all Liabilities to the extent relating to to, arising out of or resulting from Seller’s gift card program or any confidentialitygift certificates, non-solicitation coupons or similar agreements entered into promotions of or owned by Parent Seller or any of its Affiliates Affiliates, except to the extent set forth in Section 2.04(d) (for the avoidance of doubt, all obligations to any Government Authority or its Taxing Authority or their Representatives other Person under escheatment, unclaimed or abandoned property or similar Laws shall be Excluded Liabilities);
(k) except as set forth in Section 2.04(f), all Liabilities arising out of any and all Actions (including those listed on Schedule 2.05(k)), except for the costs of compliance with any equitable remedies resulting from such Actions, including the costs of compliance with any prospective injunctive relief or the associated need to changes the relevant business practices on a going forward basis to the extent such remedies have been consented to by Buyer (such consent not to be unreasonably withheld, conditioned or delayed);
(l) all unpaid amounts of any checks and wires related to the Business that are outstanding as of the close of business on the day immediately preceding the Closing Date, except to the extent set forth in Section 2.04(k);
(m) all Environmental Liabilities arising at, prior to or after the Closing in connection with or relating to an Acquisition Proposal(i) properties currently or formerly owned, leased or operated, including by the Seller or its Subsidiaries, in connection with the Business, the Purchased Assets or the Shares, other than the Business Real Property, (ii) offsite impacts (but solely in relation to such offsite impacts) associated with the migration of Hazardous Substances from any Business Real Property, and (iii) the handling, treatment, storage, release, disposal or arrangement for the disposal of any Hazardous Substances to or at any third-party location;
(ixn) all Liabilities agreed to be performed by Seller or any of the Retained Subsidiaries pursuant to the terms of this Agreement or any of the other Transaction Documents;
(o) all Liabilities arising from out of or relating in connection with any real property other than the Business Real Property;
(p) except to any Actions involving Parent the extent expressly allocated among the parties in a different manner pursuant to this Agreement or any of the Transaction Documents, all costs, fees and expenses incurred or to be incurred by Seller or its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets Affiliates in connection with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 and the other Transaction Documents, including those associated with the separation of the Insolvency Act Business from the Retained Business and with the sale, conveyance, transfer, assignment and delivery to Buyer of the Purchased Assets and Assumed Liabilities, as well as the fees, costs and expenses of counsel, accountants and financial advisors; and
(South Africaq) those Liabilities listed on Schedule 2.05(q).
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary contained herein, as of other than the ClosingAssumed Liabilities, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and Seller Parties shall be responsible for paying, performing and discharging when dueall of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and none of Buyer shall not assume, or its Affiliates shall assume in any way be liable or have any responsibility responsible for, the following any Liabilities of Parent or its Affiliates the Seller Parties (the “Excluded Liabilities”):). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(ia) those Liabilities not any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise (other the Apportioned Obligations that are apportioned to Buyer pursuant to Section 6.2);
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Business Seller Parties’ or the Purchased Assets their Affiliates’ obligations under or agreements with any Payment Programs (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable including pursuant to the Business shall be excluded herebyany Provider Agreements);
(iih) those Liabilities relating to any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by the operation of Law by the Buyer or its Affiliates pursuant Business prior to the Transfer Regulations (and whichClosing Date or, for the avoidance of doubt, are intended to be included within from the definition operation of Indebtedness)the Excluded Business at any point in time;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiiii) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the failure Closing Date, due to advertise overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by Halyard Health South Africa the Seller Parties or their Affiliates;
(Ptyo) Ltd. under Section 34 any Liability of the Insolvency Act Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(South Africa)p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Opko Health, Inc.), Asset Purchase Agreement (Opko Health, Inc.)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary contained herein, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Sellers shall retain or and not assign, and Purchasers shall not assume, as applicableany debts, and shall be responsible for paying, performing and discharging when due, and none obligations or liabilities of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates Sellers not expressly assumed pursuant to Section 2.1(c) hereof (the “Excluded Liabilities”):). The Sellers shall continue to be obligated to pay, perform and discharge the Excluded Liabilities, and the Sellers and the Stockholders shall hold Purchasers and JAKKS and their respective Affiliates harmless from such Excluded Liabilities. Notwithstanding anything to the contrary contained herein, the Excluded Liabilities shall include, without limitation:
(i) those Liabilities not relating to or arising out All current and long-term debt of Sellers existing as of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only Closing that portion of such Liabilities is not attributable otherwise discharged at Closing pursuant to the Business shall be excluded hereby)closing payments described in Section 2.2 hereof;
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities All costs and expenses (other than license transfer fees) incurred by Sellers in respect connection with obtaining the approval of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant Person to the Transfer Regulations (and which, for assignment of the avoidance Included Contracts; provided that the Sellers shall incur no liability in connection with obtaining approvals of doubt, are intended the Persons listed on Schedule 8.3 except to be the extent that the amount payable in such connection is included within in the definition of Indebtedness)Cash Component;
(iii) those Liabilities set forth on Except as is provided in Section 2.02(c)(iii2.1(c)(i)(G) and (H) and Section 2.1(c)(ii)(G) and (H), all general liability for claims arising out of actions or omissions prior to the Seller Disclosure ScheduleEffective Time, including, without limitation, any liabilities arising from or relating to audits conducted pursuant to the terms of any Included Contract with respect to periods prior to the Closing Date;
(iv) those Liabilities relating to All obligations or arising out liabilities (including liabilities under ERISA or COBRA), in respect of product warranty any employee pension or benefit plan or program (including any Employee Plan) except as such obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior liabilities pertain to the ClosingIncluded Contracts and relate to periods following the Effective Time;
(v) all accounts payableAll liability for property Taxes, Expenses Utilities, rents and Indebtedness of Parent other payments due in connection with Sellers’ Real Property, in each case relating to periods prior to the Effective Time, except to the extent allocable to JAKKS US or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)JAKKS HK pursuant to Section 2.3;
(vi) all intercompany payables and loans between Parent Any environmental liabilities, conditions or obligations that arise from the disposal or release of any Hazardous Materials on, at or underlying Sellers’ Real Property prior to the Effective Time or any other real property that any Seller or any of its Affiliates (other than the Transferred Subsidiaries)directly or indirectly owns, on the one hand, and leases or occupies or in respect of which such Person has any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handinterest or contingent interest;
(vii) (A) all All obligations or liabilities in respect of Parent any employees, consultants, agents, contractors or its Affiliates advisors pursuant to any brokeroral or written consulting, finder employment, agency, independent contractor, change in control, severance or agent for any investment banking similar agreement or brokerage feesarrangement, finders’ fees accrued sick leave or commissions relating paid-time off obligations, except as such obligations and liabilities pertain to the transactions contemplated by this Agreement Included Contracts and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;relate to periods following the Effective Time; and
(viii) all Liabilities relating Any liability for Taxes, whether or not accrued, assessed or currently due and payable, of the Stockholders or Sellers, whether or not related to any confidentialitythe ownership or use of the Assets for the purposes of or so accruing, non-solicitation being asserted, or similar agreements entered into by Parent becoming due in respect of or any of its Affiliates or its or their Representatives in connection with the CDI Business, for any Tax period (or relating portion thereof) ending on or prior to the Closing Date, including any liability of the Stockholders or Sellers as members of an Acquisition Proposal;
(ixAffiliated Group pursuant Treasury Regulation §1502-6(a) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability Code, except to the extent it relates allocable to or arises out of any Excluded Asset or is not primarily related Purchasers pursuant to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)2.3 below.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Jakks Pacific Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of At the Closing, subject to Article IX of the Delayed Closing Asset Purchase Agreement, neither the Company nor any Buyer Parties shall, by the execution and performance of this Agreement or any applicable Later Closingotherwise, Parent or its Affiliates shall retain or assume, as applicable, and shall be become responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, incur the following Liabilities of Parent or its Affiliates the Company (except to the extent such Liabilities constitute ▇▇▇▇▇▇▇▇ Company Liabilities), which Sellers shall assume at the Closing and shall agree to pay, perform and discharge when due (collectively, the “Excluded Liabilities”):
(ia) those Except as provided in Section 6.5, and except if taken into account in the calculation of the Actual True-Up Amount under the Asset Purchase Agreement, any Liabilities of any Seller or any Seller Companies for Taxes for any Pre-Closing Period, whether or not relating to assessed or currently due and payable, including any Taxes arising out of from the Business or the Purchased Assets ownership, operation or use of the Landfill or the Company’s other assets;
(b) Subject to the terms of Section 6.5, any Liabilities of Sellers for expenses incurred in connection with the case sale of those the Interests pursuant to this Agreement;
(c) Any inter-company payables between the Company and any Seller Company;
(d) All Liabilities shared by for accounts payable and other current liabilities owed or accruing (as determined in accordance with GAAP) prior to the Business and Closing Date that do not constitute ▇▇▇▇▇▇▇▇ Company Liabilities;
(e) Any Proceeding against any Seller Party or any subsidiary or Affiliate of any Seller Party (any such subsidiaries or Affiliates of Seller Parties are collectively referred to as the Medical Device Business, only that portion of such Liabilities not attributable “Seller Companies”) related to the Business shall be excluded herebyor the ownership, operation or use of any of the Company’s assets arising on or prior to the Closing Date (including any Proceeding set forth on Schedule 3.9 or Schedule 3.12 as of the date hereof and litigation which has been filed and with respect to which the Company or any Seller Company has received service of process as of the date hereof but excluding Proceedings relating to the ▇▇▇▇▇▇▇▇ Company Liabilities);
(iif) those Liabilities Subject to Section 6.4, any Encumbrances (other than Permitted Encumbrances) relating to the Business or the ▇▇▇▇▇▇▇▇ Company Assets;
(g) Except for any Material ▇▇▇▇▇▇▇▇ Disposal Contracts and Assumed Severance and Retention Bonus Liabilities, any Liabilities arising from or related to (i) any Parent Plan employee wages or for which Parent other benefits due to or its Affiliates are responsible pursuant required to Article VI but excluding Employment Related Liabilities be contributed in respect of any Continuing Employee which are assumed by operation of Law by the Buyer employees, directors or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) consultants of the Seller Disclosure Schedule;
(iv) those Liabilities relating to Company on or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
Closing Date or (vii) all accounts payablefunding, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries)contributions, on the one handbenefits, and any Affiliates of Parent (other than the Transferred Subsidiaries)payment obligations, on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentialityexpenses, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities including “withdrawal liability,” arising from or relating to any Actions involving Parent Benefit Plans sponsored, made available, maintained, contributed to or required to be contributed to by any Seller Party or any of its directors or officers relating to or arising out of this Agreement or Seller Company for the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out benefit of any Excluded Asset current or is not primarily related to former employee of any Seller Party or any Seller Company, it being expressly understood that, except for any Material ▇▇▇▇▇▇▇▇ Disposal Contracts and the Business or Assumed Severance and Retention Bonus Liabilities, neither the Purchased Assets;
(xi) Company nor any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations Buyer Parties are assuming any Benefit Plans of the parties under Article VII, Company or any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01other Seller Party; and
(xiiih) Subject to Section 1.5 (including without limitation Section 1.5(e)), any Liability other Liabilities of any nature whatsoever, whether legal or equitable, or matured or contingent, arising out of or in connection with or related to the failure to advertise Company, the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 Business, the ownership, lease, operation, performance or use of the Insolvency Act (South Africa)Landfill and the Company’s other assets or the employment of or compensation or provision of benefits to employees of the Company on or prior to the Closing Date that do not constitute ▇▇▇▇▇▇▇▇ Company Liabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(aNone of Splitco, Newco (or any other subsidiary of Splitco) or Section 2.02(b) RMT Partner Canada shall assume liabilities, obligations and commitments to the contraryextent relating to, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility forarising from, the following Liabilities of Parent or its Affiliates (collectively, the “Excluded Liabilities”):
(ia) those Liabilities not the accounts payable relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business incurred prior to the Contribution;
(b) manufacturer’s coupons relating to Products, which coupons are issued, granted, delivered or otherwise made available prior to the Contribution and are received by the clearing house for reimbursement within 60 days after the Contribution;
(c) all trade and consumer promotions, including contests and sweepstakes, relating to Products to the extent the liability arises prior to the Contribution (the extent to which such liabilities arise prior to the Contribution shall be excluded herebydetermined as described in Section 4.4(f));
(iid) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant Product returns received prior to the Transfer Regulations Contribution or within 60 days after the Contribution;
(e) warranty obligations and which, for product liabilities with respect to Products sold prior to the avoidance of doubt, are intended Contribution;
(f) customer deductions attributable to be included within invoices with respect to Products sold prior to the definition of IndebtednessContribution;
(g) Environmental Liabilities set forth on Schedule 4.5(g);
(iiih) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities all employment and employee benefits-related liabilities, obligations, commitments, claims and other Losses relating to or arising out employees of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (affiliates, other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handCovered Employee Liabilities;
(vii) (Ai) all obligations liabilities that arose prior to the date of the Contribution that are covered by property and casualty, employer’s liability, commercial general liability, workers’ compensation and automobile insurance provided by a third party insurance carrier of Parent to the extent that Parent receives an actual cash recovery from such third party insurance carrier in respect of such liabilities;
(j) all liabilities to be expressly retained by, or for which responsibility is assigned to, any member of the Parent Group pursuant to the Tax Allocation Agreement;
(k) a material breach by Parent or its Affiliates subsidiaries of any Assigned Contracts as of the date of this Agreement which breach Parent had Knowledge existed as of the date of this Agreement but failed to any brokerdisclose to RMT Partner in Schedule 8.6;
(l) (i) litigation (if any) arising out of the matters set forth on Schedule 4.5(l), finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to (ii) litigation that arises outside the transactions contemplated by ordinary course of business of the Business after the date of this Agreement and which is pending or has been threatened in writing as of the date of the Contribution and (Biii) litigation arising from the labeling or advertising of any other fees Product sold prior to the Contribution; Table of Contents (m) recalls or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into withdrawals by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to subsidiaries of any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability Products sold prior to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Contribution; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contraryPurchaser shall not assume and shall not be liable for, as and Sellers shall indemnify, defend and hold Purchaser harmless against, any of the Closingfollowing liabilities or obligations of Sellers, regardless of the type or nature of such liabilities or obligations (collectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “"Excluded Liabilities”"):
(i) those Liabilities not relating Sellers' professional fees and expenses for advisors, including without limitation, advisors retained pursuant to or arising out an order of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Bankruptcy Court;
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Chapter 11 Expenses;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Scheduleall existing Contracts, whether written or oral, between Sellers and their respective advisors and consultants;
(iv) those Liabilities all employment and change in control agreements (or such similar agreements) and all stock option agreements and stock purchase agreements to which any Seller is a party, except for the employment agreement between Joseph Lapinsky and Republic to be assumed and assigned to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ant to this Agreement;
(v) all Contracts, whether written or oral, between Sellers and their respective Affiliates, unless any such Contract is a Purchased Contract;
(vi) liabilities of Sellers to Sellers' Employees not expressly assumed under this Agreement;
(vii) other than as expressly assumed herein, any liabilities attributable to or incurred in respect of Hired Employees prior to the Closing, including by reason of the WARN Act;
(viii) all obligations, liabilities or amounts payable to any existing equity holders of Sellers pursuant to any Contract or otherwise;
(ix) any liabilities or obligations in respect of or relating to or arising out of product warranty obligations the Excluded Assets, except as expressly set forth in the Transition Services Agreement;
(express or impliedx) and product liability claims (all Taxes other than product (i) real property Taxes to the extent set forth in Section 3.1(a)(vi), (ii) Taxes allocated to Purchaser to the extent set forth in Section 7.2, and (iii) Taxes with respect to any indemnity provision, tax sharing agreement or packaging complaints other arrangement contained in a Purchased Contract but only to the extent that do all of the events or states of facts giving rise to any such liability occur wholly and entirely after the Closing;
(xi) liabilities or obligations in respect of Indebtedness, except for any that are Assumed Liabilities;
(xii) liabilities and obligations, whether known or unknown, relating to any environmental, health or safety matter (including, without limitation, any liability or obligation arising under Laws or Environmental Laws) that are not arise out expressly assumed under this Agreement, including without limitation:
(A) any liabilities or obligations associated with any of injury the Excluded Plants or the real property associated therewith;
(B) any liabilities or obligations of Sellers resulting from the transport, storage, disposal, treatment, or other management of any Hazardous Substance by Sellers, any predecessors of Sellers, or any other Person in connection with the Business prior to person the Closing (whether generated at the Purchased Plants or property and the Excluded Plants) to or at any location or facility other than product recallsthe Real Property;
(C) any liabilities, obligations or claims for products of the Business sold personal injury resulting from exposure to Hazardous Substances or otherwise, where such exposure or other event or occurrence occurred prior to the Closing;
(vD) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable any liabilities under application of any Transferred Subsidiary included in Laws or Environmental Laws imposing successor liability, creating obligations with respect to any Excluded Assets, or imposing joint and several liability for any co-mingled contamination;
(E) any liabilities or obligations under the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiaryCanton EPA Corrective Action Order not expressly assumed under Section 3.1(a)(viii);
(viF) all intercompany payables any liabilities or obligations under the Director's Final Findings and loans between Parent Order issued on June 16, 1999, to Republic Engineered Steels, Inc., as now or any of its Affiliates (other than hereafter amended, or otherwise relating to the Transferred Subsidiaries), EAF Dust Waste Area located on the one hand, excluded portion of the property at Canton (including closure and any Affiliates of Parent (other than the Transferred Subsidiariespost-closure obligations imposed by Environmental Law), on the other hand;
(viiG) (A) all obligations any fines or penalties associated with violations or alleged violations arising out of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to events, conditions or circumstances occurring prior to the transactions contemplated by this Agreement and Closing;
(BH) any other fees liabilities, whether known or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities unknown and whether arising from or relating to any Actions involving Parent or any of its directors or officers relating prior to or after the Closing Date, relating to, arising out of this Agreement from, or the transactions contemplated hereby;
(x) any Liability to the extent it relates to occurring on, at, or arises out of from any Excluded Asset Assets or is property other than Real Property, including but not primarily related limited to the Business (i) excluded properties adjacent or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating proximate to the Purchased Assets with respect Plant located in Lorain, Ohio (which excluded properties include the former coke plant complex, the blast furnace slag processing area, a construction/debris disposal area, the Charleston Gate area, the Pipe Mill Lagoon, and various locations, such as those known as the East Fill and North Fill and the area near the heron rookery, used for by-product material staging and/or historic waste and dredgings disposal), (ii) excluded properties adjacent or proximate to any Pre-Closing Tax Periodthe Purchased Plant located in Canton, determined Ohio (which excluded properties include those SWMUs/AOCs identified in accordance with Section 3.1(a)(viii)), and (iii) excluded properties adjacent or proximate to the principles of Section 7.01; andPurchased Plant located in Gary, Indiana (which excluded properties include the former iron bearing landfill area and an ancillary building at the Gary Dunes Plant);
(xiii) any Liability trade payables or gener▇▇ ▇nsecured claims not expressly assumed under this Agreement;
(xiv) obligations, other than Cure Costs, arising out of under each Reference Lease relating to leased Real Property prior to the failure Closing Date; (xv) obligations, other than Cure Costs, arising under each Purchased Contract prior to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).Closing Date;
Appears in 1 contract
Sources: Asset Purchase Agreement (Republic Technologies International Holdings LLC)
Excluded Liabilities. Notwithstanding anything The Buyer does not assume, and Parent does not assume, and will not become responsible for any of the following liabilities and obligations of the Seller or its Subsidiaries or Affiliates (collectively, the "Excluded Liabilities"):
(a) all Taxes based on income relating to the ▇▇▇▇▇ Division or the operation of the ▇▇▇▇▇ Division for periods prior to the Closing Date other than Taxes relating to the ▇▇▇▇▇ Division and the Subsidiaries and Affiliates as provided in Section 2.02(a5.10;
(b) all liabilities and obligations of the Seller or Section 2.02(bthe ▇▇▇▇▇ Division under notes payable to banks or other non-intra-▇▇▇▇▇ Division indebtedness for monies borrowed (other than the capital lease to be assumed as set forth on Schedule 2.03(b)).
(c) all liabilities and obligations of the Seller for any division of the Seller other than the ▇▇▇▇▇ Division or for any discontinued operations or former division or subsidiary of the Seller, except to the contraryextent such discontinued operation, as former division or subsidiary was owned or operated by the ▇▇▇▇▇ Division;
(d) all liabilities and obligations of the Closing, the Delayed Closing Seller relating to Seller's corporate headquarters operations or any applicable Later Closingother business segment except as primarily relates to the Continuing Employees;
(e) all liabilities and obligations with respect to any employee of the Seller other than the Continuing Employees and former employees of the ▇▇▇▇▇ Division;
(f) all liabilities and obligations of the Seller to any current and former officers and directors of the Seller, Parent other than those who are Continuing Employees and former employees of the Seller who were employees of the ▇▇▇▇▇ Division;
(g) all liabilities and obligations of Seller to any current and former shareholders of the Seller in their capacities as shareholders;
(h) all liabilities and obligations of the Seller or any of its Affiliates shall retain subsidiaries or assumeaffiliates for any professional, as applicablefinancial advisory services or consulting fees arising out of the negotiation, preparation and shall be responsible for paying, performing approval of this Agreement and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):transactions contemplated herein;
(i) those Liabilities not relating to all other liabilities, obligations and commitments, known or unknown, of the Seller arising out of the Business ownership, operation or conduct of the business of the Seller other than the ▇▇▇▇▇ Division, or the Purchased Assets (in ownership, use or operation of any assets of the case of those Liabilities shared by Seller other than the Business Assets, but only if and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)extent such liabilities, obligations and commitments relate to the business of the Seller other than the business of the ▇▇▇▇▇ Division;
(j) any liability or obligation for Taxes (i) allocated to Seller by Section 5.10, (ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation affiliate of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries)Subsidiaries and Affiliates) or (iii) of any consolidated group or corporations of which a Subsidiary or Affiliate was a member on or before the Closing Date (excluding the respective groups of which Subsidiaries and Affiliates are presently members) and in which such Subsidiary or Affiliate may be considered liable pursuant to Treas. Reg. ss. 1.1502-6 or comparable provision under state, on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handlocal or foreign tax law;
(vii) (Ak) all liabilities and obligations of Parent Seller or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities ▇▇▇▇▇ Division arising from any environmental condition or relating to any Actions involving Parent discharge or any of its directors release into the environment, existing or officers relating to occurring at or arising out of this Agreement or generated by the transactions contemplated hereby;
(x) any Liability ▇▇▇▇▇ Division's present and former facilities in Hudson, Ohio but only to the extent it relates to such liability or obligation arises out of any Excluded Asset or is not primarily related from occurrences prior to the Business or the Purchased Assets;Closing Date.
(xil) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights all liabilities and obligations of Seller or the parties under Article VII▇▇▇▇▇ Division arising from any environmental condition or discharge or release into the environment, any Liability for Taxes relating to existing or occurring at or generated by the Purchased Assets with respect to any Pre-Closing Tax Period▇▇▇▇▇ Division's present and former facilities in France and Porterville, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)California.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any other provision in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as neither ▇▇▇▇▇▇ nor any of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates affiliates shall assume or have any responsibility forbe responsible to pay, perform or discharge the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(a) any Liabilities of Primero arising or incurred in connection with the negotiation, preparation, investigation and performance of the Transaction Documents, including fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for: (i) those corporate income Taxes of Primero (or any affiliate of Primero); or (ii) Taxes that arise out of the Closing that are the responsibility of Primero under applicable Law, except as otherwise set forth in this Agreement;
(c) any Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Assets;
(iid) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer pending or its Affiliates pursuant to the Transfer Regulations (and whichthreatened Action arising out of, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products otherwise in respect of the Business sold acquisition, ownership or operation of the Purchased Assets to the extent such Action relates to such acquisition, ownership or operation on or prior to the Closing;
(ve) all accounts payableany Liabilities of Primero arising under or in connection with any Primero Benefit Plans;
(f) any Environmental Liabilities relating to the Purchased Assets, Expenses and Indebtedness but only to the extent arising out of Parent or its Affiliates relating to facts, circumstances or conditions existing on or prior to the Closing Time (other than accounts payable of any Transferred Subsidiary included in with respect to Reclamation obligations relating to the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiaryPurchased Assets);
(vig) all intercompany payables and loans between Parent or any Liabilities of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent Primero or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions affiliates not relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xih) any Liability related Liabilities to indemnify, reimburse or arising out advance amounts to any present or former officer, director, retiree, employee, independent contractor or consultant of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating Primero existing on or prior to the Purchased Assets Closing Time (including with respect to any Pre-breach of fiduciary obligations by any of such Persons), except for any indemnification of any Primero Indemnitees pursuant to Article 9;
(i) all Employee Obligations due or accruing due prior to the Adjustment Date that are not included in the Statement of Adjustments and all Primero Severance Obligations;
(j) any Liabilities under any Contracts: (i) which are not capable of being assigned to ▇▇▇▇▇▇ for any reason; or (ii) to the extent such Liabilities arise out of or relate to a breach by Primero of such Contracts prior to the Closing Tax PeriodTime;
(k) any fees, determined in accordance expenses or other payments incurred or owed by or on behalf of Primero or any of its affiliates to any brokers, financial advisors or comparable other Persons;
(l) any Liabilities associated with the principles debt, loans or credit facilities of Section 7.01Primero owing to any Person; and
(xiiim) any Liability Liabilities arising out of, in respect of or in connection with the failure by Primero or any of its affiliates to advertise comply with any Law, including any Environmental Law, or Governmental Order. For greater certainty, any and all Liabilities that arise after the transactions contemplated by this Agreement by Halyard Health South Africa Adjustment Date that are not set forth in the preceding clauses (Ptya) Ltd. under Section 34 through (m) shall not be Excluded Liabilities, and shall be Liabilities of ▇▇▇▇▇▇ after the Insolvency Act (South Africa)Closing Time. Primero shall, and shall cause each of its affiliates to, pay and satisfy in due course all Excluded Liabilities that Primero and its affiliates are obligated to pay and satisfy.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closingcontrary contained herein, the Delayed Closing Assumed Liabilities shall not include the following Liabilities, whether direct or any applicable Later Closingindirect, Parent known or its Affiliates shall retain unknown, fixed or assumecontingent, as applicableaccrued or unaccrued, matured or unmatured, asserted or unasserted, and irrespective of whether such Liabilities shall be responsible for payingarise prior to, performing and discharging when dueon or following the Closing Date (collectively, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(i) those Liabilities not relating to any Indebtedness (including under the Seller Debt Facilities) or arising out Transaction Expenses of any member of the Business Seller Group, other than Indebtedness or Transaction Expenses that results in a reduction of the Purchased Assets (in the case of those Liabilities shared Base Purchase Price and is not required by the Business and terms of this Agreement to be paid at the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Closing;
(ii) those all Liabilities to the extent relating to to, or arising from from, any Parent Plan Excluded Asset (including Seller Benefit Plans);
(iii) any Liability of Seller or for which Parent or any of its Affiliates are responsible arising under Title IV of ERISA or Section 412 of the Code and any Liabilities with respect to any Seller Benefit Plan, in each case, except as expressly assumed by Buyer pursuant to Article VI IX;
(iv) all Liabilities solely arising as a result of the consummation of the Reorganization (but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to shall not include Liabilities that would be included within the definition of Indebtedness);
(iii) those Assumed Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not would arise out of injury to person the transactions contemplated by this Agreement if Buyer acquired the Transferred Assets without Seller completing the Reorganization or property and other than product recalls) for products if Buyer purchased the equity of the Business sold prior to the ClosingAcquired Company);
(v) all accounts payableLiabilities arising under Environmental Laws to the extent relating to, Expenses or arising out of the Excluded Assets and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Retained Business;
(vi) all intercompany payables and loans between Parent Liabilities for (A) Taxes imposed on Seller or any of its Affiliates (including pursuant to Treasury Regulation section 1.1502-6 or similar provision of state, local or foreign Tax law, or pursuant to any Liability as transferee or successor), in all cases other than those applicable to the Business or any Transferred SubsidiariesAsset, and (B) Taxes applicable to the Acquired Companies, the Business or any Transferred Assets that are attributable to the ownership and operation of the Business or any Transferred Assets in any Pre-Closing Tax Period (including pursuant to the Reorganization and pursuant to Section 7.04), on which shall, for the one handavoidance of doubt, and be subject to Article XIII, but excluding any Affiliates of Parent Taxes to the extent taken into account as a reduction in Final Closing Net Working Capital (other than collectively, the Transferred Subsidiaries“Excluded Taxes”), on the other hand;
(vii) (A) all obligations except as described in Section 2.03(c), any Liabilities of Parent or its Affiliates to any brokerthe Seller Group and their respective Representatives, finder or agent including, for any investment banking or brokerage feesthe avoidance of doubt, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderRetained Business;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition ProposalAsbestos Liability;
(ix) all Liabilities arising from or relating to any Actions involving Parent current or former employees or natural person independent contractors or consultants of Seller or its Subsidiaries, other than Business Employees and Former Business Employees, but in all cases, including (A) any severance payments or benefits for any employee of Seller or any of its directors Affiliates who provided services related to the Business and who is not a Business Employee or officers relating to or arising out a Former Business Employee that do not result in a reduction of the Base Purchase Price and is not required by the terms of this Agreement to be paid at Closing, (B) notwithstanding clause (A), the severance payments and benefits for the individuals identified on Schedule 2.03(c)(xii) and (C) any claims incurred by any Business Employee or Former Business Employee (including claims incurred but not yet reported) pursuant to any Seller Benefit Plans on or prior to the transactions contemplated hereby;Closing Date; and
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africaall Liabilities listed on Schedule 2.03(d)(x).
Appears in 1 contract
Sources: Equity Purchase Agreement (Beacon Roofing Supply Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) Other than the Assumed Liabilities, Buyer is not assuming any liability or Section 2.02(b) to obligation of Seller or the contrarySelling Person of any nature, as of the Closingwhether absolute, the Delayed Closing accrued, contingent, liquidated or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicableotherwise, and shall be responsible for paying, performing and discharging when whether due or to become due, and none of Buyer asserted or its Affiliates shall assume unasserted, known or have any responsibility forunknown (collectively, the following “Liabilities”), including, without limitation, those Liabilities of Parent or its Affiliates set forth below (collectively, the “Excluded Liabilities”):
): (ia) those Liabilities not relating to or arising out in respect of any of the Business Excluded Assets; (b) Liabilities, including any Proceeding or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Businessother third Person claim, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan the activities or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold with respect to any period of time (or portion thereof) occurring prior to the Closing;
; (vc) all accounts payable, Expenses and Liabilities relating to Indebtedness or intercompany payables of Parent Seller; (d) Liabilities relating to loans or payables by Seller to the Selling Person or other Liabilities of Seller to the Selling Person; (e) Liabilities of Seller or its Affiliates direct or indirect owner(s) relating to (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vii) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent Taxes for any investment banking taxable period, whether assessed before or brokerage fees, finders’ fees or commissions relating to after the Closing Date; (ii) Taxes arising in connection with the consummation of the transactions contemplated by this Agreement and Agreement; (Biii) unpaid Taxes of any other Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law) or as a successor or transferee by contract or otherwise; (iv) payments to any Person under any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or similar agreement with respect to Taxes; or (v) any other fees or expenses Taxes for which Parent Seller or its Affiliates the Selling Person is responsible under Section 4.4 or Section 4.5; (f) Liabilities related to Seller’s or the Selling Person’s transaction fees and expenses contemplated in Section 4.2 or otherwise; 4 (g) any undisclosed Liability; (h) Liabilities incurred other than in the ordinary course of Seller’s business, consistent with past practice; (i) Liabilities related to any Employee Benefit Plans; (j) Liabilities related to premiums for officer’s life insurance policies that are expressly responsible for hereunder;
in place immediately prior to the Closing Date; (viiik) all Liabilities for breach of warranty (whether covered by insurance or not) with respect to services rendered prior to the Closing Date; (l) Liabilities relating to any confidentialitycurrent or former Staff Employee, non-solicitation Temporary Personnel or similar agreements entered into by Parent Billable Staffing Independent Contractor or current or former group of Staff Employees, Temporary Personnel or Billable Staffing Independent Contractors, including any change of its Affiliates control or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability severance Liabilities, except to the extent it relates to or arises out of any Excluded Asset or is not primarily accrued for as current Liabilities in Adjusted Net Working Capital; (m) Liabilities related to the Business or the Purchased Assets;
(xi) any Liability related Real Property, except any Liabilities of Seller specifically assumed pursuant to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles Lease Assignment Agreements or the Nashville Lease Agreement; (n) Liabilities of Section 7.01Zycron Latin America, Zycron Memphis, Inc., Zycron Europe Limited and International Consulting Enterprises, LLC; and
and (xiiio) any other Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)that is not an Assumed Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything in Except with respect to those liabilities expressly assumed pursuant to Section 2.02(a) 2.03 above, including but not limited to Section 2.03(h), Buyer shall not assume any liability of Seller Entities, and Seller shall retain such liabilities, whether or Section 2.02(b) to the contrarynot accrued and whether or not disclosed, as of or on the ClosingClosing Date (collectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). Without limiting the generality of the foregoing, except with respect to those liabilities expressly assumed pursuant to Section 2.03 above, Excluded Liabilities include, without limitation the following liabilities and obligations of the Seller Entities:
(ia) those Liabilities not except as expressly included in the definition of Assumed Liabilities, any liabilities or obligations to any third party directly and proximately arising out of or relating to Seller’s ownership or operation of the Business and the Purchased Assets prior to the Closing Date;
(b) any liabilities or obligations relating to or arising out of the Excluded Assets;
(c) any liabilities or obligations for (i) Taxes relating to the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
extent relating to events or circumstances occurring prior to, and any taxable period, or portion thereof ending prior to, the Closing Date; and (ii) those Liabilities relating any other Taxes of Seller (other than Taxes expressly allocated to or arising from Buyer under Section 6.15) for any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);taxable period.
(iiid) those Liabilities set forth on Section 2.02(c)(iii) any liabilities or obligations of the Seller Disclosure Schedule;
(iv) those Liabilities Entities relating to or arising out of product warranty obligations (express i) the employment, or implied) and product liability claims (other than product or packaging complaints that do not arise out termination of injury to person or property and other than product recalls) for products employment, of the Business sold any Employee prior to the Closing;
, (vii) all accounts payable, Expenses and Indebtedness of Parent Benefit Plans or its Affiliates (other than accounts payable iii) workers’ compensation claims of any Transferred Subsidiary included in Employee to the calculation of Net Working Capital extent arising from events occurring prior to the Closing Date, including but not limited to any Taxes that were deferred by Seller Entities under the CARES Act and Indebtedness of any Transferred Subsidiarydeferrals by any Employees (if permitted by Seller);
(vie) all intercompany payables except as otherwise set forth herein, any liabilities or obligations of Seller arising or incurred in connection with the negotiation, preparation, investigation and loans between Parent or any performance of its Affiliates (other than the Transferred Subsidiaries)this Agreement, on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handTransaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(viif) any obligations under any Paycheck Protection Program loans or financings;
(Ag) all any liabilities or obligations of Parent Seller Entities, contingent or its Affiliates to any brokerotherwise, finder or agent for any investment banking indebtedness of Seller Entities (which for the avoidance of doubt shall not include any leases pursuant to a sale leaseback transaction or brokerage feesany leases considered operating leases under the prior accounting standards);
(h) Seller Entities’ product liability for any products, finders’ fees goods or commissions services sold, delivered or performed by Seller Entities prior to and up until the Closing Date;
(i) unamortized incentive liabilities or similar provisions requiring any actual or contingent payments and/or liabilities arising under the Branding Agreements from and after Closing relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xij) any Liability related to severance or arising out retention benefits or accrued benefits of any nature (including under any Benefit Plans) of any employee, officer and/or director of Seller as of the RestructuringClosing Date;
(xiik) without limiting the rights and obligations any liability of the parties Seller arising under Article VII, PMPA or any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; andsimilar state or local law governing dealer agreements;
(xiiil) any Liability liability of Seller Entities arising out of the failure to advertise comply with employment laws, ERISA or PPACA on or prior to the transactions contemplated by this Agreement by Halyard Health South Africa Closing Date;
(Ptym) Ltd. all other obligations, liabilities, covenants, commitments and undertakings of Seller Entities which are not expressly included within the definition of Assumed Liabilities;
(n) all liabilities and obligations arising under Section 34 or relating to the Assigned Contracts to the extent such liabilities and obligations relate to events, circumstances or periods occurring before the Closing Date and
(o) any and all liabilities and obligations relating to Ramco, LLC, Pine Belt Oil Company, LLC and/or any current or prior subsidiaries thereof, and/or the Membership Interests and/or the membership interests in Pine Belt Oil Company, LLC, but only to the extent such liabilities and obligations would be Excluded Liabilities and not Assumed Liabilities had Seller sold the assets of Pine Belt Oil Company, LLC and Ramco, LLC instead of the Insolvency Act (South Africa)Membership Interests.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) Buyer shall not assume or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none the performance of Buyer or its Affiliates shall assume or have any responsibility for, of the following Liabilities of Parent or its Affiliates (collectively, the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out ): Any Liability of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities Seller exclusively in respect of any Continuing Employee which are assumed by or otherwise arising from (a) the operation or use of Law by (x) the Buyer Excluded Assets or its Affiliates pursuant to the Transfer Regulations (and whichy) except as expressly set forth in this Agreement, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold period prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness the Acquired Assets; Any Liability of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities Seller arising from the making or relating to any Actions involving Parent or any of its directors or officers relating to or arising out performance of this (b) Agreement or a Related Agreement or the transactions contemplated hereby;
hereby or thereby; Any Liability of Seller under the Assigned Contracts or Assigned Leases (xc) any Liability (i) in respect of payment obligations for goods delivered or services rendered prior to the extent it relates Closing Date, (ii) relating to a breach or arises out default by Seller of any Excluded Asset or is not primarily related of its obligations thereunder occurring prior to the Business Closing Date whenever such breach is declared by the Counterparty thereto or (iii) relating to the Purchased Assets;
CBA MOA; Except for those Assumed Liabilities set forth in Section 2.3(d), any (xid) Liability of Seller (i) for any Liability related compensation, benefits, employment Taxes, workers compensation benefits and other similar Liabilities (including under the Generation CBA, any Employee Benefit Plan of Seller, or any other agreement, plan, practice, policy, instrument or document relating to any of the Transferred Employees) created, arising or accruing before the Closing Date, whether or not subject to any continued service agreement, including pro rata payments earned before the Closing Date, in respect of the Transferred Employees, any temporary employees, and the Scheduled Employees who are not offered, or who do not accept, employment with the Buyer, (ii) relating to the Transferred Employees or temporary employees for which Seller is responsible under Section 5.8, (iii) relating to former employees, temporary employees or Scheduled Employees who are not offered, or who do not accept, employment with Buyer, or (iv) in respect of any workers’ compensation, tort, Hazardous Substance exposure, Public Service Company of New Hampshire dba Eversource Energy Docket DE 17-124 October 12, 2017 Attachment 2 Page 29 of 159 EXECUTION VERSION discrimination, wrongful discharge, unfair labor practice or other employee Claim under applicable Laws or under Seller’s Employee Benefits Plans by any Transferred Employee arising out of or relating to acts or omissions occurring prior to the Restructuring;
Closing Date, by any former employee, by any temporary employee or by any Scheduled Employee who is not offered, or who does not accept, employment with Buyer; Any Liability of Seller arising from or associated with any Intercompany (xiie) without limiting Arrangement, other than Liabilities under those Assigned Contracts set forth on Schedule 2.2(j); Any Liability of Seller for any fines or penalties imposed by a (f) Governmental Authority resulting from (i) any investigation or proceeding pending prior to the rights and obligations Closing Date or (ii) illegal acts or willful misconduct of Seller prior to the parties under Article VII, any Closing Date; Any Liability for Taxes (including, with respect to property Taxes, (g) payments in addition to or in lieu of Taxes and the Property Tax Stabilization Payments) relating to the Purchased ownership, operation, sale or use of the Acquired Assets with respect prior to any Pre-Closing Tax Periodthe Closing, determined in accordance with except those Taxes for which Buyer is liable pursuant to Section 2.7, Section 5.12 and Section 5.13. Any Liability of Seller pursuant to Section 5.20; and (h) Subject to the principles provisions of Section 7.01; and
5.11, (xiiiA) any Environmental Liability (i) caused, created or otherwise in existence due to the activities of or otherwise attributable to Seller prior to the Closing, except those Environmental Liabilities described in Section 2.4(i)(B)(II), Section 2.4(i)(C) and Section 2.4(i)(D) below, (B) any Environmental Liability arising out of or resulting from any Release of mercury at Schiller Station that occurred (I) prior to or on the failure to advertise Closing or (II) during the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 performance of the Insolvency Act work pursuant to the Removal Contract, which Release occurred after Closing but prior to the Schiller Boiler Removal Completion Date, (South AfricaC) any Environmental Liability relating to the treatment, disposal, storage, discharge, Release, recycling or the arrangement for such activities at, or the transportation to, any Offsite Disposal Facility by Seller, prior to or on the Closing Date, of Hazardous Substances that were generated at the Sites, and (D) any Environmental Liability of Seller for any fines or penalties imposed by a Governmental Authority resulting from (I) any investigation or proceeding pending prior to the Closing Date or (II) illegal acts or willful misconduct of Seller prior to the Closing Date; provided, however, that the Liability of Seller pursuant to Section 2.4(i)(A) and, from and after the occurrence of the Schiller Boiler Removal Completion Date, Section 2.4(i)(B)(I) (and, together with such clauses, any associated indemnification obligations of Seller hereunder) shall terminate (x) on the applicable Excluded Environmental Liability Termination Date, after which any Liabilities described in Section 2.4(i)(A) and Section 2.4(i)(B)(I) shall be Assumed Liabilities for which Buyer is liable pursuant to Section 2.3(a), and Seller shall have no further Liability with respect thereto, or (y) upon exceeding the indemnification cap set forth in Section 7.4(a)(ii), if earlier than the applicable Excluded Environmental Liability Termination Date, any Liabilities described in Section 2.4(i)(A) and Section 2.4(i)(B)(I) shall be Assumed Liabilities for which Buyer is liable pursuant to Section 2.3(a), and Seller shall have no further Liability with respect thereto. The Excluded Liabilities described in Section 2.4(d) (solely as it relates to employee exposure to Hazardous Substances), Section 2.4(h) and Section 2.4(i), as limited by the terms thereof, are Public Service Company of New Hampshire dba Eversource Energy Docket DE 17-124 October 12, 2017 Attachment 2 Page 30 of 159 EXECUTION VERSION referred to herein as the “Excluded Environmental Liabilities.” For avoidance of doubt, it is the intention of the Parties that Section 2.4(d) (solely as it relates to employee exposure to Hazardous Substances), Section 2.4(h) and Section 2.4(i) shall exclusively define those Environmental Liabilities constituting Excluded Liabilities hereunder, and that no other provision of this Section 2.4 shall be construed to include any Environmental Liabilities.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Excluded Liabilities. Notwithstanding anything in the provisions of Section 2.02(a) or Section 2.02(b) 1.4, it is expressly understood and agreed that there shall be excluded from the Liabilities and obligations being assumed by Purchaser and/or its Designated Affiliates hereunder (and to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, extent that the following Liabilities and obligations have been incurred by any Acquired Company, Seller and its Subsidiaries (other than its Acquired Companies) shall assume and be solely responsible for) the following Liabilities and obligations of Parent Seller or any of its Affiliates Subsidiaries (collectively, the “Excluded Liabilities”):
(ia) those All Liabilities of Seller or any of its Subsidiaries (including any Acquired Company) not Related to the Business, including all Liabilities primarily relating to or arising out of the Business or the Purchased Assets (assets, business lines, rights, contracts and claims specified in the case of those Liabilities shared by the Business Sections 1.3(h) and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby1.3(i);
(iib) those all Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates Subsidiaries (other than the Transferred SubsidiariesAcquired Companies) is expressly made responsible pursuant hereto or the Transition Agreements;
(c) all Liabilities to the extent related to any Excluded Asset;
(d) all Excluded Taxes;
(e) except as set forth on Schedule 1.5(e), all intercompany receivables, payables, loans and investments (i) between Seller or any of its Subsidiaries (other than an Acquired Company), on the one hand, and Seller or any Affiliates of Parent its Subsidiaries (other than the Transferred Subsidiariesan Acquired Company), on the other hand, or (ii) required to be settled in accordance with Section 6.5;
(vii) (Af) all obligations of Parent Liabilities assigned to or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated retained by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderSeller under Section 10.1;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixg) all Liabilities arising from under or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any PreBusiness Contracts to the extent related to any Excluded Real Property;
(h) except to the extent provided in Section 1.4(m) (Assumed Liabilities) and subject to the provisions set forth in Article XI, all Environmental Liabilities whether or not Related to the Business, provided, however, with respect to Historical Off-Closing Tax PeriodSite Environmental Liabilities, determined such Liabilities shall be subject to the procedures set forth in accordance with Section 11.4;
(i) all Liabilities to the principles extent arising out of Legal Proceedings relating to the matters constituting Excluded Liabilities specified in the foregoing clauses (a) – (h) of this Section 7.011.5;
(j) all Liabilities to the extent relating to the Deleted Parcels and other real property not conveyed (including through the Acquired Companies) to Purchaser (or its designee) hereunder; and
(xiiik) any Liability arising out the Indebtedness of the failure to advertise Business other than (i) the transactions contemplated by this Agreement by Halyard Health South Africa Assumed Indebtedness; and (Ptyii) Ltd. under Section 34 the Indebtedness of the Insolvency Act (South Africa)Business reflected, or expressly reserved for, in the Estimated Closing Date Working Capital Statement, as the same may be adjusted in the Closing Date Working Capital Statement.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Meadwestvaco Corp)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary herein, as Buyer shall not assume or in any way be responsible for, and the term “Assumed Liabilities” shall not include, any of the Closingliabilities, the Delayed Closing obligations and commitments of Seller or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, Seller Entity relating to the Assets and shall be responsible for paying, performing and discharging when due, and none the operation of Buyer or its Affiliates shall assume or have any responsibility for, the following Business prior to the Closing other than the Assumed Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). The Excluded Liabilities include, without limitation:
(a) Any liabilities relating to Taxes owing in respect of the Business relating to the conduct, or results of operations, of the Business on or prior to the Closing, except for value-added taxes, sales taxes and other consumption-type taxes relating to accounts payable or trade payables assumed by Buyer pursuant to Section 1.03(b) hereof;
(b) Except as expressly assumed by Buyer pursuant to Section 1.03(e) or Section 7.03 hereof, (i) those Liabilities not any claims relating to periods prior to the Closing with respect to any Employee Benefit Plan, (ii) the termination of any employee benefits or arising out Employee Benefit Plan on or prior to the Closing, (iii) any claims relating to the early retirement program benefits for Seller’s employees (or exclusion of any person therefrom), (iv) claims relating to the termination by Seller or any of the Seller Entities of employment of any employee of the Business on or prior to the Purchased Assets Closing or (v) liabilities in the case respect of those Liabilities shared by employees of the Business with respect to retention bonus and the Medical Device Businessother payments that become due and payable before December 31, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)2001;
(iic) those Liabilities relating to Claims made by any employee or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products former employee of the Business sold who is offered employment by Buyer in accordance with Section 7.03 hereof but who does not accept such offer and is not so employed after the Closing by Buyer relating to employment prior to the Closing;
(vd) all accounts payable, Expenses and Indebtedness Any liability in respect of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included indebtedness for borrowed money incurred in connection with the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Business prior to the Closing;
(vie) all intercompany payables All liabilities and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out operation of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax PeriodEnvironmental matters and Environmental Laws, determined in accordance with the principles of except for liabilities and obligations assumed by Buyer pursuant to Section 7.011.03(c) and Section 8.05 hereof; and
(xiiif) any Liability Any liability relating to actions, suits, claims, workmen’s compensation claims, legal proceedings, orders or investigations relating to the Business arising out of prior to the failure to advertise the transactions contemplated Closing, except for liabilities assumed by this Agreement by Halyard Health South Africa (Pty) Ltd. Buyer under Section 34 of 1.03(a), Section 1.03(d) or Section 1.03(i) hereof (the Insolvency Act (South Africa“Retained Litigation”).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything 12.3.1 If the Purchaser receives notice of any claim by a third party in Section 2.02(arespect of any Excluded Liability (an “Excluded liability Claim”) or Section 2.02(b) it shall give notice of such claim to the contraryBusiness Sellers as soon as reasonably practicable.
12.3.2 Subject to Clause 12.3.4, to the extent that the Purchaser (or any member of the Purchaser’s Group) is involved directly in the relevant claim, the Purchaser shall, or shall procure that the relevant member of the Purchaser’s Group shall, conduct such claim in a manner which is consistent, in all material respects, with the manner in which the Purchaser (or, as the case may be, the relevant member of the ClosingPurchaser’s Group) would, at the relevant time, conduct any Purchaser Third Party Claims.
12.3.3 Subject to Clause 12.3.4, the Delayed Closing Purchaser shall, to the extent permitted by any Law and Regulations, take such action as the Business Sellers may reasonably request to avoid, dispute, resist, appeal, compromise, settle, defend or mitigate any applicable Later Closing, Parent or its Affiliates Excluded Liability Claim subject to the Purchaser being indemnified on an after-Tax basis by the Business Sellers against all Losses which may thereby be incurred and provided that the Purchaser shall retain or assumenot be required to take any action which is not consistent in any material respect with the manner in which the Purchaser (or, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility forthe case may be, the following Liabilities relevant member of Parent or its Affiliates the Purchaser’s Group) would, at the relevant time, conduct any Purchaser Third Party Claim. Without limitation to the foregoing (the “Excluded Liabilities”and subject to applicable Law and Regulations):
(i) those Liabilities not relating to or arising out the Purchaser shall, and shall procure that any other relevant members of the Business or the Purchased Assets (in the case of those Liabilities shared by Purchaser’s Group shall, allow the Business Sellers and their financial, accounting, tax or legal advisers reasonable access to allow them to investigate the Medical Device Businessfact, only that portion matter or circumstance alleged to (or which may) give rise to such Excluded Liability Claim and whether and to what extent any amount is or may be payable in respect of such Liabilities not attributable to the Business shall be excluded hereby)claim;
(ii) those Liabilities the Purchaser shall, and shall procure that any other relevant members of the Purchaser’s Group shall, disclose to the Business Sellers all material of which it/they are aware which relates to such Excluded Liability Claim and shall, subject to their being paid all reasonable out of pocket costs and expenses, give all such information and assistance, including:
(a) access to premises and personnel (including any Relevant Employee with knowledge relating to the relevant facts, matters or arising from circumstances or who can otherwise reasonably assist the Business Sellers);
(b) making such personnel available for factual interviews, preparation for testimony, giving evidence, producing affidavits and other similar activities; and
(c) the right to examine and copy or photograph any Parent Plan assets, accounts, correspondence, documents and records, as the Business Sellers or for which Parent their financial, accounting or legal advisers may reasonably request; and
(iii) the Purchaser shall, and shall procure that any other members of the Purchaser’s Group shall, at all times take all reasonable steps to maintain any legal privilege that exists in relation to any information referred to in this Clause 12.3 (including books of account, records and correspondence) relevant to the Excluded Liability Claim. Nothing in this Clause 12.3 shall entitle any Business Seller or its Affiliates are responsible pursuant advisers to Article VI but excluding Employment Related Liabilities have access to any information which relates to legal advice in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, claim for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) breach of the Seller Disclosure Schedule;Transaction Documents.
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates 12.3.4 In relation to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated claim by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or a third party relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of Excluded Liability the Business Sellers shall be entitled at its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability own expense and in its absolute discretion, by notice in writing to the extent Purchaser to take such action as it relates shall deem necessary to avoid, dispute, deny, defend, resist, appeal, compromise, settle or arises out contest the relevant claim (including making counterclaims or other claims against third parties and including instructing such professional and legal or tax advisers as the Business Sellers may nominate to act on behalf of the relevant Purchaser or member of the Purchaser’s Group) in the name of and on behalf of the Purchaser or member of the Purchaser’s Group concerned and to have the conduct of any Excluded Asset related proceedings, negotiations or is not primarily related to appeals except that the Business or Sellers shall, conduct such claim in a manner which is consistent, in all material respects, with the Purchased Assets;
manner in which the Business Sellers (xi) any Liability related to or arising out or, as the case may be, the relevant member of the Restructuring;
(xiiRBSG Group) without limiting would, at the rights and obligations of the parties under Article VIIrelevant time, conduct any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)RBSG Third Party Claim.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Royal Bank of Scotland Group PLC)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contraryNeither Buyers nor any of their Affiliates shall assume, as nor shall they become responsible for any Liabilities of the Closing, the Delayed Closing Business or of Sellers or any applicable Later Closingof Sellers’ Affiliates other than the Assumed Liabilities (collectively, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):), which Excluded Liabilities shall include, without limitation, the following:
(a) all Net Liabilities to the extent not included in the Closing Net Assets;
(b) except as allocated to Buyers pursuant to Sections 9.2 and 9.5(d), any Liability for Taxes imposed on Seller Parties with regard to the Products or the Business or the Acquired Assets, including without limitation (i) any Liability of Seller Parties for the Taxes of any other Person (other than Taxes of the Acquired Entities for any Post-Closing Tax Period) by operation of law, as a transferee or successor, by contract, or for any other reason, (ii) any Taxes imposed on Sellers attributable to the German Hive-down or the French Hive-down and (iii) any Taxes attributable to the Seller Parent Spin-Off, to the extent not included in the Closing Net Assets;
(c) any Liabilities relating to the Net Business Debt incurred prior to the Closing Date to the extent not deducted from the Global Purchase Price pursuant to Section 3.3;
(d) any Liabilities relating to the Change of Control Payments (which for the avoidance of doubt shall include any retention payments or stay bonuses to any UK Employee, whenever due and payable, pursuant to any Contract existing prior to the Closing) to the extent not deducted from the Global Purchase Price pursuant to Section 3.3;
(e) any Liabilities relating to the Transaction Expenses to the extent not deducted from the Global Purchase Price pursuant to Section 3.3;
(f) any Liabilities relating to the operation of the Business prior to the Closing, except to the extent included in the Assumed Liabilities;
(g) any Liabilities under or in connection with any Excluded Assets;
(h) any Liabilities specifically excluded pursuant to the terms of a Local Agreement;
(i) those any Liabilities not relating for actual or alleged infringement of third party Intellectual Property by the manufacture, making, using, selling, offering for sale or importing of any Products prior to the Closing Date, including the pro rata portion of any damages assessed against the manufacture, making, using, selling offering for sale or arising out importing of any Products prior to the Closing Date, except to the extent taken into account in the determination of Closing Net Assets;
(j) except as otherwise provided in Schedule 8.6, any Liabilities for compensation payable to the Transferred Employees for services performed prior to the Closing Date, including any Liabilities for compensation or payment made to any employee of the Business or pursuant to the Purchased Assets (use of such employee invention in any Products prior to the Closing Date, except to the extent taken into account in the case determination of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Closing Net Assets;
(iik) those any Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Bio-Rad Business;
(iiil) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those any Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;Neoteric Business; and
(vm) all accounts payableexcept as otherwise provided in Schedule 8.6, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives arising in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Olympus Benefit Plan.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything The Sellers shall retain and pay, perform and discharge in Section 2.02(a) accordance with their terms (as the same may be modified in connection with the Chapter 11 Case or Section 2.02(b) to the contraryotherwise), as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none all Liabilities of Buyer the CFC Parties or its Affiliates shall assume the Parent (arising before, on or have any responsibility forafter the Cut-Off Time) that are not expressly Assumed Liabilities (the "Excluded Liabilities"). The Excluded Liabilities include, but are not limited to, the following Liabilities of the CFC Parties or the Parent or its Affiliates (the “"Specified Excluded Liabilities”):")
(i) those arising from, related to or in connection with any of the Parent's or the Sellers' transaction expenses;
(ii) except for the Liabilities specifically set forth in Section 2.2(a) of the applicable Business Schedules, for (A) any indebtedness or any other Liability of the CFC Parties or the Parent, including intercompany indebtedness between or among their respective Affiliates or (B) any Liabilities arising from or in connection with any Securitization or Residual Assets (other than Liabilities with respect to PL Residual Assets arising after the Cut-Off Time) or any Guarantees of the CFC Parties or the Parent, including intercompany Guarantees between Affiliates and any Guarantees given to any holders of interests in a Securitization;
(iii) for any Taxes, whether or not relating to the Purchased Businesses, the Purchased Assets or the transactions contemplated hereby, whether before, on or after the Funding Date, other than Taxes of any Subject Subsidiary (or a Subsidiary of a Subject Subsidiary after the Funding Date) for any Post-Funding Tax Period solely to the extent the Buyer purchases the Shares of such Subject Subsidiary in a Stock Sale, provided, that Taxes of a Subject Subsidiary (or Subsidiary thereof) for a Post-Funding Tax Period shall not include any Liability of Parent or any Affiliate of the Company that a Subject Subsidiary or Subsidiary thereof is required to pay by virtue of Treasury Regulation Section 1.1502-6 or comparable provision of state, local or foreign Law;
(iv) attributable to the Purchased Assets or the operation of the Purchased Businesses for all periods up to and including the Cut-Off Time, including, without limitation, any Liabilities for any default or breach, or for any event, occurrence, condition or act which, with the giving of notice, the passage of time or both, would result in a default or breach, of any of the Assumed Agreements, to the extent such default or breach or event, occurrence, condition or act existed on or prior to the Cut-Off Time;
(v) to indemnify any Person by reason of the fact that such Person was a director or officer of any of the CFC Parties or was serving at the request of the CFC Parties as a partner, trustee, director, officer, employee or agent of another Person;
(vi) with respect to any principal, partner, employee, officer, director, consultant, independent contractor, agent or Affiliate of the CFC Parties or the Parent (other than Liabilities assumed by the Buyer under Section 5.12 hereof and the Assumed Retention Agreement) arising out of employment, compensation, severance, change-of-control, stay-pay, sale bonus, retention bonus or other special compensation or golden parachute agreements, plans or arrangements, including any such Liability incurred in connection with the execution and performance of this Agreement or any other Transaction Documents and the consummation of the transactions contemplated hereby and not expressly assumed herein, including any Employee Agreement.
(vii) arising under, out of, with respect to or in connection with any Employee Benefit Plan and any other employee benefit plan (within the meaning of Section 3(3) of ERISA) maintained or sponsored by any Seller or any ERISA Affiliate and not expressly assumed by the Buyer herein;
(viii) arising out of or resulting from any noncompliance with or violation of any Laws (including, without limitation, any securities Laws or Environmental Laws);
(ix) arising out of any occurrences of bodily injury, property damage or personal injury which take place on or prior to the Cut-Off Time;
(x) arising out of, related to, in connection with or with respect to any deferred purchase price payment obligations or non-competition payment obligations associated with (A) any acquisition prior to the Cut-Off Time of any business, Subsidiary, security or assets of any Person or (B) any disposition of any business, Subsidiary, security or assets of any Person;
(xi) to indemnify any Third Party in connection with the disposition of any subsidiary, business, properties or assets or operations of any Person;
(xii) arising from, in connection with or with respect to such Person's direct or indirect ownership (beneficial or otherwise) at any time of any capital stock of or other beneficial interest in (or any right to acquire such stock of or interest in) any of the CFC Parties;
(xiii) arising from, related to or in connection with any cure or other amount payable with respect to the assignment of any contractual obligation to the Buyer hereunder;
(xiv) arising from, related to, in connection with or with respect to any Excluded Asset;
(xv) under this Agreement;
(xvi) for infringement or misappropriation of any intellectual property rights of a third party arising from the operation of the Purchased Businesses on or before the Cut-Off Time;
(xvii) relating to any claim, dispute, litigation or arbitration asserted or threatened or governmental proceeding or investigation instituted or threatened, arising out of any act or omission of the CFC Parties or the Parent or any of their Affiliates on or prior to the Cut-Off Time, or arising out of the Business conduct, on or prior to the Cut-Off Time, of the Purchased Assets Businesses or any other businesses of CFC Parties (including, without limitation, any claim, dispute, litigation or arbitration with respect to or in the case connection with unpaid wages or Fair Labor Standards Act classification and any other litigation and arbitration listed in Section 3.18 of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded herebySchedules);
(iixviii) those Liabilities arising out of (A) any noncompliance with or violation of any Environmental Law on or before the Cut-Off Time, (B) any existing environmental condition (whether or not relating to any noncompliance) of the Purchased Assets, or (C) any release of Hazardous Substances on or before the Cut-Off Time, in each case, regardless of whether any of the foregoing was known to or disclosed to the Parties or any of their Affiliates;
(xix) under any insurance coverage, self-insurance or retention program provided to customers in connection with the Purchased Businesses;
(xx) arising from from, related to or in connection with Assumed Leases arising or accruing on or prior to the Cut-Off Time and/or due to a breach by the Sellers or any Parent Plan of their Subsidiaries under any contractual obligation, except to the extent relating to any Permitted Lien;
(xxi) to any equity holder or for which Parent former equity holder of the CFC Parties;
(xxii) relating to any repurchase, assumption or its Affiliates are responsible similar Liability under any Contract pursuant to Article VI but excluding Employment Related Liabilities in respect of which loans were sold to a Third Party or pursuant to any Continuing Employee which Securitization not relating to the PL Business;
(xxiii) that are PL Excluded Servicing Liabilities;
(xxiv) under the Honda Purchase Agreement; or
(xxv) assumed by operation the Company or one of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations Section 2.l(b)(i). The Buyer shall not assume or otherwise become liable for any Excluded Liabilities (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities whether or not such Excluded Liability is specifically set forth on Section 2.02(c)(iii) of above). Nothing contained in this Agreement shall be construed to imply that the Seller Disclosure Schedule;
(iv) those Buyer will assume the PL Excluded Servicing Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates Guarantees given to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any holders of its Affiliates or its or their Representatives interests in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)a Securitization.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, Except for the avoidance of doubtAssumed Liabilities, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do Buyer -------------------- shall not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated assume by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out virtue of this Agreement or the transactions contemplated hereby;, and shall have no liability for, any Liabilities of Sellers, including without limitation any of the following Liabilities (the "Excluded -------- Liabilities"): -----------
(xa) Any Liabilities of Sellers or their Affiliates in respect of any Liability Excluded Assets or other assets of Sellers or their Affiliates which are not Purchased Assets, except to the extent it relates to caused by the acts or arises out omissions of any Excluded Asset Buyer or is not primarily related to the Business its Affiliates or Buyer's or its Affiliates' ownership, operation or use of the Purchased Assets;
(xib) any Liability related to or arising out Any Liabilities in respect of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating attributable to the Purchased Assets for taxable periods ending before the Closing Date, except for Taxes for which Buyer is liable pursuant to Sections 3.5 or 6.8 hereof;
(c) Any Liabilities of Sellers or their Affiliates arising from the breach or default by Sellers or their Affiliates, prior to the Closing Date, of any Sellers' Agreement, the Intellectual Property agreements identified in Schedule 2.1(o), Transferable Permit or any other contract, license, agreement or personal property lease entered into by Sellers or their Affiliates with respect to the Purchased Assets;
(d) Any and all Liabilities to third parties for personal injury or tort, or similar causes of action arising solely out of the ownership or operation of the Purchased Assets prior to the Closing Date, other than any Liabilities specifically assumed by Buyer under Section 2.3;
(e) Any fines or penalties imposed by a Governmental Authority resulting from (i) an investigation or proceeding before a Governmental Authority regarding acts which occurred prior to the Closing Date, or (ii) illegal acts, willful misconduct or gross negligence of Sellers or their Affiliates prior to the Closing Date, other than, in the case of either (i) or (ii), any Liability specifically assumed by Buyer under Section 2.3;
(f) Any payment obligations of Sellers or their Affiliates for goods delivered or services rendered prior to the Closing Date, including, but not limited to, rental payments pursuant to personal property leases;
(g) Any Liability under or related to Environmental Laws or the common law arising as a result of or in connection with loss of life, injury to persons or property or damage to natural resources (whether or not such loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date) caused (or allegedly caused) by the off-Sites disposal, storage, transportation, discharge, Release, or recycling of Hazardous Substances, or the arrangement for such activities, prior to the Closing Date, in connection with the ownership or operation of the Purchased Assets, provided that for purposes of this Section 2.4 "off-Sites" does not include any location to which Hazardous Substances disposed of or Released at the Purchased Assets have migrated;
(h) Any Liability under or related to Environmental Laws or the common law arising as a result of or in connection with the investigation and/or Remediation (whether or not such investigation or Remediation commenced before the Closing Date or commences on or after the Closing Date) of Hazardous Substances that are disposed, stored, transported, discharged, Released, recycled, or the arrangement of such activities, prior to the Closing Date, in connection with the ownership or operation of the Purchased Assets, at any off-Sites location, provided that for purposes of this Section 2.4 "off-Site" does not include any location to which Hazardous Substances disposed of or Released at the Purchased Assets have migrated;
(i) Any Liability under or related to Environmental Laws or the common law arising as a result of or in connection with PP&L's or its Affiliate's, ownership, operation or use of the Transmission Assets prior to, on or after the Closing Date, except to the extent caused by the acts or omissions of Buyer or its Affiliates or Buyer's or its Affiliates's ownership, operation or use of the Purchased Assets;
(j) Any Liability under or related to Environmental Laws or the common law arising as a result of or in connection with Sellers', or their respective Affiliate's, ownership, operation or use of Stott Mine #1 prior to, on or after the Closing Date, except to th▇ ▇▇▇ent caused by the acts or omissions of Buyer or its Affiliates or Buyer's or its Affiliates' ownership, operation or use of the Purchased Assets;
(k) Any Liabilities relating to any Benefit Plan maintained by Sellers or any trade or business (whether or not incorporated) which is or ever has been under common control, or which is or ever has been treated as a single employer, with any Seller under Section 414(b), (c), (m) or (o) of the Code ("ERISA Affiliate") or to which any Seller and any ERISA Affiliate --------------- contributed thereunder (the "ERISA Affiliate Plans"), maintained by, --------------------- contributed to, or obligated to contribute to, by Sellers or any ERISA Affiliate, including any Liability (i) to the Pension Benefit Guaranty Corporation under Title IV of ERISA; (ii) with respect to non-compliance with the notice and benefit continuation requirements of COBRA; or (iii) with respect to any Pre-noncompliance by Sellers with ERISA or any other applicable laws, but not including any Liabilities specifically assumed pursuant to Section 6.10 hereof;
(l) Any IBEW Grievances or any other Liabilities relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination by Sellers of any individual, attributable to any actions or inactions by Sellers prior to the Closing Tax PeriodDate other than such actions or inactions taken at the direction of Buyer or its Affiliates;
(m) Any Liability of any Seller arising from the making or performance of this Agreement or the Additional Agreements or the transactions contemplated hereby or thereby;
(n) Any Liabilities relating to any claim, determined action, suit or proceeding regarding matters which arose prior to the Closing Date, notwithstanding the disclosure thereof in accordance with the principles any Schedule, or any subsequent claim, action, suit or proceeding arising out of Section 7.01or relating to such matters;
(o) Any Income Taxes attributable to income received by Sellers; and
(xiiip) any Liability Any Liabilities relating to or arising out from the fuel leak at Sunbury SES which is described in Attachment A of the Chester Engineers Letter; and
(q) Any Liabilities ▇▇▇▇▇▇▇ from the failure of Sellers to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Ptycomply with their obligations pursuant to Section 2.1(g) Ltd. under Section 34 of the Insolvency Act (South Africa)hereof.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) Buyer shall not assume or Section 2.02(b) be obligated to the contrarypay, as perform or otherwise assume or discharge any liabilities or obligations of the Closing, the Delayed Closing Seller or any applicable Later ClosingAffiliate of Seller, Parent whether direct or its Affiliates shall retain indirect, known or assumeunknown, absolute or contingent, except for the Assumed Liabilities (all of such liabilities and obligations not so assumed being referred to herein as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). For the avoidance of doubt, the parties agree that the Excluded Liabilities include, but are not limited to, any and all liabilities or obligations set forth or described in paragraphs (a) through (h) below. Seller or a Subsidiary shall pay, perform and discharge all such Excluded Liabilities, including the following:
(a) all Liabilities relating to the Excluded Assets (unless specifically included as an Assumed Liability under Section 2.3);
(b) all Liabilities that are not expressly assumed by Buyer pursuant to Section 2.3;
(c) any Taxes of the Seller for periods or portions thereof ending on or prior to the Closing Date;
(d) all Liabilities for legal, accounting and audit fees and any other expenses incurred by the Seller in connection with this Agreement;
(e) all Liabilities of the Business arising from or in connection with the conduct of the Business prior to the Closing Date, except as otherwise assumed by the Buyer pursuant to this Agreement;
(f) all Liabilities related to Contracts that are not Assumed Contracts;
(g) all Liabilities for raw materials, parts, components, or other supplies used in the Business that are owned by third parties, except where the subject of an Assumed Contract or where part of the Venture Inventories.
(h) any action, suit, claim, demand, or proceeding regarding the Business arising or accruing prior to the Closing Date;
(i) those Environmental Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and whichincluding, for the avoidance of doubt, are intended the proceeding pursuant to be included within the definition New Jersey Industrial Site Recovery Act resulting from the parties hereto entering into this Agreement) relating to the operation of Indebtedness)the Business prior to the Closing Date;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viiij) all Liabilities relating to employee compensation or benefits (including without limitation obligations arising under retention or severance agreements, health care plans, insurance plans, 401k or pension plans, COBRA, WARN, or ERISA) of any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or Business Employee relating to an Acquisition Proposalemployment with Seller;
(ixk) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating product defects for products shipped prior to or arising out of this Agreement or the transactions contemplated herebyClosing Date;
(xl) any Liability all Liabilities relating to export of products prior to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Date; and
(xiiim) any Liability Liabilities or obligations of Seller arising out of the failure or relating to advertise the transactions contemplated by its performance under this Agreement by Halyard Health South Africa (Pty) Ltd. regardless of whether such performance is required before or after the Closing Date), including without limitation any obligation arising under Section 34 the Indemnification obligations of the Insolvency Act (South Africa)Seller under Article VI.
Appears in 1 contract
Sources: Purchase Agreement (Emcore Corp)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary contained in this Agreement, as of other than the ClosingAssumed Liabilities, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Purchaser shall retain or assume, as applicable, and shall not be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall obligated to assume or have to perform or discharge any responsibility forLiability of Sellers (such Liabilities not assumed by Purchaser, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business), only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and whichExcluded Liabilities, for the avoidance of doubt, shall include, but are intended to be included within not limited to, those listed on Schedule 2.4 and the definition following:
(a) Claims arising under Section 503(b)(9) of Indebtedness)the Bankruptcy Code;
(iiib) those Claims or Liabilities set forth arising on Section 2.02(c)(iii) of or before the Seller Disclosure SchedulePetition Date under the Perishable Agricultural Commodities Act, 7 U.S.C. §499a et seq., the Packers and S▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇ ▇.▇.▇. §▇▇▇ et seq., or their state law correlates;
(ivc) those Liabilities relating to any costs or arising out expenses incurred in connection with, or related to, this Agreement, the consummation of product warranty obligations (express the Contemplated Transactions or implied) the administration of the Chapter 11 Cases, including, without limitation, any accrued professional fees and product liability claims (other than product or packaging complaints that do not arise out expenses of injury to person or property attorneys, accountants, financial advisors and other than product recallsprofessional advisors related to the Chapter 11 Cases;
(d) all Liabilities and obligations under Sellers’ key employee retention plan;
(e) all Liabilities for products the provision of notice or payment in lieu of notice and any applicable penalties under the Business sold WARN Act arising prior to the ClosingClosing Date or arising as a result of the Contemplated Transactions;
(vf) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates Liabilities to any broker, finder finder, agent or agent similar intermediary for any investment banking broker’s fee, finder’s fee or brokerage fees, finders’ fees similar fee or commissions commission relating to the transactions contemplated by this Agreement and (B) any other fees or expenses Contemplated Transaction for which Parent any Seller or its Affiliates are expressly responsible for hereunderincluding any transaction fee payable to the Seller’s investment banker pursuant to Section 5.5 of this Agreement;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(xg) any Liability to the extent it relates to accrued and unpaid personal property Taxes or arises out of payroll Taxes or other Taxes owed by any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
Seller other than those Taxes specified in Sections 2.3(i) and (xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01j); and
(xiiih) any Liability arising out all Liabilities, or corrective or remedial obligations with respect to the operation of the failure Business which arises under or related to advertise the transactions contemplated by this Agreement by Halyard Health South Africa any Environmental Laws (Ptyincluding without limitation any relating to exposure to any Hazardous Materials) Ltd. under other than those specified in Section 34 of the Insolvency Act (South Africa2.3(f).
Appears in 1 contract
Sources: Asset Purchase Agreement (ONE Group Hospitality, Inc.)
Excluded Liabilities. Notwithstanding It is expressly understood and agreed that, notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Assumed Liabilities shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, not include the following Liabilities of Parent or its Affiliates (collectively, the “Excluded Liabilities”):
(i) those Liabilities not relating to or all obligations and liabilities arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable relating to the Business shall be excluded hereby)Excluded Assets;
(ii) those Liabilities all obligations and liabilities arising out of or relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities the legal proceedings and matters set forth in respect Section 2.12 of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Disclosure Schedule;
(iii) those Liabilities set forth on Section 2.02(c)(iii) All obligations and liabilities for accrued compensation of employees of the Seller Disclosure ScheduleBusiness earned after March 31, 2012 that remain unpaid on or prior to the Closing Date (“Pre-Closing Accrued Salaries”);
(iv) those Liabilities relating to all liabilities and obligations of Seller for costs and expenses incurred in connection with this Agreement or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products the consummation of the Business sold prior to the Closingtransactions contemplated by this Agreement;
(v) all accounts payable, Expenses liabilities and Indebtedness obligations of Parent Seller for costs and expenses incurred in connection with any restructuring or reorganization of Seller or its Affiliates Subsidiaries or Affiliates, which amount shall include, by way of description and not by way of limitation, amounts set forth on the Most Recent Balance Sheet as “Accrued restructuring costs,” and amounts payable in respect of retention, severance benefits, termination pay, transaction bonus arrangements, “stay-pay” or similar agreements entered into with Business Employees prior to Closing (other than accounts payable obligations and liabilities assumed by, or that are otherwise the responsibility of, Buyer pursuant to Section 9.4) and any intercompany liability of any Transferred Subsidiary included in to the calculation Seller or an Affiliate of Net Working Capital and Indebtedness of any Transferred Subsidiary)Seller;
(vi) all intercompany payables liabilities and loans between Parent obligations retained by, or any of its Affiliates (other than that are otherwise the Transferred Subsidiaries)responsibility of, on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handSeller pursuant to Section 9.4;
(vii) except to the extent provided in Section 8.5, any (A) all obligations Taxes of Parent or its Affiliates to any broker, finder or agent the Seller for any investment banking or brokerage feestaxable period, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Excluded Assets with respect for any taxable period, and (C) Taxes relating to the Non-Stock Assets or Assumed Liabilities or of any Transferred Subsidiary for any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiiiviii) all liabilities and obligations relating to any Liability arising out and all amounts held by Seller for refunds to customers that are subject to escheatment under applicable law reflected on the Most Recent Balance Sheet or incurred after the Balance Sheet Date but prior to Closing, in the ordinary course of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)business.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Openwave Systems Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a(a) Except for the Assumed Liabilities, neither the Buyers nor any of their Affiliates shall assume, take subject to or Section 2.02(b) be liable for any liabilities or obligations of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Business, arising prior to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates Effective Time (the “Excluded Liabilities”):). The Seller shall pay and perform and shall cause its Affiliates to pay and perform, on or before the date due, all Excluded Liabilities.
(b) Without limiting the generality of Section 2.6(a), the Excluded Liabilities shall include any liabilities or obligations of the Seller arising prior to the Effective Time for:
(i) those Liabilities not Any liabilities (including all accounts payable) relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Seller Publications;
(ii) those Liabilities relating to any Proceedings made or arising from any Parent Plan pending by or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by against the Buyer or its Affiliates pursuant Seller prior to the Transfer Regulations (and whichClosing Date, for that arise out of or relate to the avoidance of doubt, are intended to be included within the definition of Indebtedness)Business;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily Taxes related to the operations or assets that comprise the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined and any income or sales Taxes arising by reason of the transactions contemplated herein;
(iv) any Taxes of the Seller unrelated to the Business;
(v) any Contract for which the liabilities and obligations are not assumed by the Buyers pursuant to Section 2.5(b);
(vi) any breach by the Seller of Environmental Law prior to the Closing Date in connection the Business;
(vii) any Plans or Other Benefit Obligations of the Seller or any of Seller’s Affiliates (including any obligations of the Seller or any of Seller’s Affiliates to make contributions to any 401(k) plan), except for Accrued PTO, which shall be assumed pursuant to Section 2.5(a) and payable in accordance with Section 5.6;
(viii) any employment, severance, retention or termination agreement with any employee working exclusively in the principles Business, except for up to an aggregate of $50,000 for Seller’s severance obligations, which shall be payable in accordance with Section 7.01; and5.6;
(ix) any obligation to distribute to any limited partner or general partner or otherwise to apply all or any part of the consideration received hereunder;
(x) any noncompliance prior to the Effective Time by the Business with any Legal Requirement of any Governmental Authority;
(xi) any Indebtedness or any security interest related thereto, including without limitation the Indebtedness set forth in Schedule 3.23;
(xii) any fees and expenses incurred by the Seller prior to the Effective Time in connection with the transactions contemplated hereby;
(xiii) any Liability arising out obligation to any limited partner, general partner or any former limited partner or general partner;
(xiv) any obligation relating to the Excluded Assets;
(xv) any claim by employees or former employees of Seller or their respective dependants for any medical claim “incurred” (meaning treatment was received prior to Closing) under the federal healthcare continuation rules known as COBRA; and
(xvi) any obligation of the failure to advertise Seller under this Agreement or any other document executed by the Seller in connection with the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) Purchaser will not assume, or Section 2.02(b) be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to the contrary, as “Excluded Liabilities,” all of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or assumeunknown, as applicableabsolute, and shall be responsible for payingcontingent, performing and discharging when liquidated or unliquidated, due or to become due, and none whether claims with respect thereto are asserted before or after the Closing). Notwithstanding anything to the contrary contained in Section 2.3 and without any implied increase in any of Buyer or its Affiliates the Assumed Liabilities, Excluded Liabilities shall assume or have any responsibility for, include each of the following Liabilities:
(a) any and all Liabilities of Parent and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or its Affiliates (the “Excluded Liabilities”):negotiation and consummation of the transactions contemplated by this Agreement;
(ib) those any and all Liabilities not relating to under Contracts with any officer, director or Affiliate of Seller who is a Non-Accepting Employee;
(c) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Business Closing Date, including (i) accrued salaries and wages, (ii) accrued payroll Taxes, (iii) withholdings, (iv) charges of unfair labor practices, and (v) discrimination complaints, but not including accrued vacation and sick pay to the extent assumed under Section 2.3;
(d) any and all Liabilities of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA with respect to Non-Accepting Employees;
(e) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising on, prior to or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets (in the case of those Liabilities shared by the Business pursuant to any applicable bulk sales, bulk transfer or similar laws and the Medical Device Business, only that portion of such Liabilities which do not attributable to the Business shall be excluded hereby)otherwise constitute Assumed Liabilities;
(iif) those any and all Liabilities relating to under any intercompany loans, accounts or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by Contracts between the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries)Business, on the one hand, and Seller or any Affiliates of Parent (other than the Transferred Subsidiaries)its Affiliates, on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (Bg) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities or from events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any confidentiality, non-solicitation or similar agreements entered into and all Liabilities of Seller arising by Parent reason of any violation of any Law or any requirement of its Affiliates any Governmental Body, including all Liabilities arising from, related to or its or their Representatives in connection with FCC enforcement actions, in each case, to the extent such Liability results from or relating arises out of events, facts or circumstances occurring or existing on or prior to an Acquisition Proposalthe Closing Date;
(ixi) any and all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated herebyExcluded Assets, including Excluded Contracts;
(xj) any Liability and all Taxes arising from or with respect to the extent it relates Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or arises out any portion of any Excluded Asset period, ending on or is not primarily related prior to the Business or Closing Date, and income and similar Taxes, of a type not described in Section 7.11, that are imposed as a result of the sale of the Purchased AssetsAssets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(xik) any Liability related Liabilities of Seller for Indebtedness;
(l) all sales and use taxes, other than pursuant to Section 7.11, if any;
(m) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts,
(n) any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller on or prior to the Closing Date;
(o) any and all Liabilities of Seller arising by reason of any violation or alleged violation of any Law or any requirement of any Governmental Body on or prior to the Closing Date;
(p) any and all Liabilities relating to or arising out of the Restructuring;
(xii) without limiting the rights and obligations claims or causes of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets action with respect to any Pre-Purchased Contract except those Liabilities assumed under Section 2.3(a);
(q) any and all Liabilities (A) arising during the one year period commencing on the Closing Tax PeriodDate, determined including Liabilities for claims made but not paid or resolved prior to the first anniversary of the Closing Date, for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date, or (B) for warranty claims based upon, attributable to or resulting from (i) anything other than Seller’s usual and customary express written warranty, or (ii) any implied warranty arising due to statements or conduct of Seller or Seller’s employees or agents; except, in accordance each case under (A) or (B) of this subparagraph, to the extent that Purchaser elects to satisfy such Liabilities using standards consistent with Seller’s past practice relating to the principles Business regarding warranty claims, in which event Seller shall promptly reimburse Purchaser for the costs incurred by Purchaser;
(r) any and all Liabilities of Section 7.01Seller arising out of the injury to or death of any person or animal or damage to or destruction of any tangible property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory arising from or related to products (or parts or components thereof) sold, distributed or otherwise disposed of or services performed by or on behalf of Seller, in each case, on or prior to the Closing Date;
(s) any and all Liabilities of Seller for severance pay or the like with respect to any Employee; and
(xiiit) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments (other than accrued but unused vacation, sick days, or personal days with respect to Transferred Employees to the extent assumed under Section 2.3) to any Employee for the period prior to the Closing. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability arising out of Seller or its Subsidiaries (or any predecessor owner of all or part of the failure to advertise the transactions contemplated Business) of whatever nature. All such other Liabilities shall be retained by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 and remain Liabilities and obligations of the Insolvency Act (South Africa)Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bell Industries Inc /New/)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as neither Medquist nor any Affiliate of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Medquist shall retain or assume, as applicable, and shall not be responsible for payingdeemed to have assumed, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates the Sellers other than the Assumed Liabilities (all such other Liabilities, the “Excluded Liabilities”):). For the avoidance of doubt, the Excluded Liabilities shall include, but shall not be limited to, the following:
(a) all Liabilities arising out of Excluded Assets, including the Excluded Agreements;
(b) all Liabilities in respect of Indebtedness of the Sellers (including all Liabilities arising under or in connection with the Indenture or the Financing Agreement), other than (i) the Ordinary Course Balance Sheet Liabilities, (ii) obligations under the Assumed Contracts or Assumed Leases, and (iii) one-half of the Spheris India Payables;
(c) the portion of Transfer Costs for which the Sellers are responsible under Section 7.5;
(d) (i) Taxes imposed with respect to the Purchased Assets or the Assumed Liabilities for any taxable period (or portion thereof) that ends on or prior to the Closing Date, (ii) Taxes imposed with respect to the Excluded Assets or the Excluded Liabilities for any taxable period, (iii) as provided in Section 5.11, (iv) Taxes imposed on or payable by the Sellers for any taxable period except for (x) Transfer Taxes imposed with respect to the transfer of the Leased Real Property and other Purchased Assets pursuant to this Agreement, the allocation of which shall be governed by Section 7.5(a), (y) Property Taxes for Straddle Periods, the allocation of which shall be governed by Section 7.5(c), and (z) Taxes imposed with respect to the Purchased Assets or the Assumed Liabilities for a taxable period arising after, but assessed prior to, the Closing Date; and (v) any Liability of the Sellers for Taxes of any other Person by reason of contract, assumption, transferee liability, operation of law or otherwise;
(e) all Liabilities of the Sellers under this Agreement;
(f) other than (A) Liabilities arising after the Closing under the Assumed Contracts, and (B) Liabilities arising under the Indian Benefit Plans, all Liabilities with respect to service providers (including current and former directors, officers, employees and independent contractors) with respect to any period, including (x) any Liability arising under any U.S. Benefit Plan, Foreign Benefit Plan (other than an Indian Benefit Plan) or any other employee program or arrangement at any time maintained, sponsored or contributed to by any of the Spheris Entities or any predecessor or Affiliate thereof or any ERISA Affiliate, or with respect to which any of the Spheris Entities or any predecessor or Affiliate thereof or any ERISA Affiliate has any Liability, and (y) any Liability under any employment, severance, retention, termination or other similar agreement with any present or past employee, officer or director of any Spheris Entity;
(g) any Liability to Spheris Holding III, Inc. or any of its shareholders;
(h) any Liability of a Seller relating to the Purchased Assets related to facts or actions occurring or accruing prior to the Closing that is not expressly included among the Assumed Liabilities;
(i) those all Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Businessattributable to, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from the period prior to the Closing arising (i) under Environmental Laws or (ii) from any Parent Plan Contract or other arrangement for disposal or treatment of Hazardous Substances, or for which Parent the transportation of Hazardous Substances for disposal or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities treatment, in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) each case including those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to arising from acts or arising out of product warranty obligations (express omissions occurring or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold conditions in existence prior to the Closing;
(vj) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)CBay Assumed Spheris India Payables;
(vik) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and Liability with respect to any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handSeller Broker Fee;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xil) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Seller Restricted Cash; and
(xiiim) any Liability arising out of a Seller not expressly included among the failure to advertise the transactions contemplated Assumed Liabilities or expressly assumed by Medquist or a Medquist Designee under this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Agreement.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to The Assumed Liabilities shall exclude the contraryfollowing (“Excluded Liabilities”), as each of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates which shall retain or assume, as applicableremain liabilities and obligations of, and shall be responsible for payingpaid, performing performed and discharging discharged by the Vendors or Parent as and when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”)::
(ia) those Liabilities not relating to any liabilities or obligations of the Excluded Entities;
(b) any liabilities or obligations arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Assets;
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (Bc) any other fees liabilities or expenses for which Parent obligations constituting or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated herebyThird Party Debt;
(xd) all income Tax liabilities related to the periods prior to the Effective Time;
(e) all liabilities for remittance of any Liability Tax, including employee remittance Taxes but not including the liabilities referred to in Section 2.3(ix), to the extent it relates to such amount has been collected by or arises out on behalf of any Excluded Asset or is the Vendors, but not primarily related remitted to the Business or applicable Tax Authority prior to the Purchased AssetsEffective Time, except to the extent included as liabilities on the Parent Net Working Capital Statement;
(xif) any Liability related all Intercompany debt;
(g) liabilities for contributions to or the Union Plans as required pursuant to a Collective Agreement that are due and payable prior to the Effective Time, except to the extent included as liabilities on the Parent Net Working Capital Statement, and liabilities directly arising out of the Restructuringperformance by any employee of the Vendors of the duties of a trustee of any Union Plan prior to the Effective Time;
(xiih) any liabilities or obligations in respect of the Excluded IT Employees;
(i) any liability or obligation of the Vendors or Parent under this Agreement or any of the Ancillary Agreements;
(j) without limiting the Section 6.11, any obligations to Employees or Excluded IT Employees to provide shares, rights and obligations to acquire shares or other equity interests in any of the parties under Article VII, Vendors or Parent;
(k) any Liability for Taxes relating liability to the Purchased Assets with respect pay retention or completion bonuses to any Pre-Closing Tax Period, determined in accordance with Employees or Excluded IT Employees as a result of the principles completion of Section 7.01the Transactions; and
(xiiil) any Liability arising out liabilities or obligations related to any real property (including any fixtures and appurtenances thereto, or tangible or intangible assets disposed in connection therewith) that was previously used in or comprising a part of the failure Business and was disposed of prior to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Effective Time.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to Neither the contrary, as Purchaser nor any of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates the Sellers other than the Assumed Liabilities (such unassumed Liabilities, the “Excluded Liabilities”):), including:
(ia) those all Liabilities not for Taxes relating to or arising out of the Business or the Purchased Assets (for any Pre-Closing Tax Period, except to the extent taken into account in the case computation of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Closing Working Capital;
(iib) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related all Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Excluded Assets;
(iiic) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Scheduleall Pre-Closing Environmental Liabilities;
(ivd) those Liabilities relating any Liability under any indemnification or other obligation pursuant to any Lease that arises from or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury relates to person or property and other than product recalls) for products of the Business sold prior to the Closingany Excluded Liability;
(ve) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable Liabilities owed by any Seller to any Affiliate of any Transferred Seller or any Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Seller;
(vif) all intercompany payables any Liability of a Seller for costs and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by expenses incurred in connection with this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(xg) any Liability Liabilities relating to the Benefit Plans (including all withdrawal liability with respect to any multiemployer plan) other than those expressly designated herein as Assumed Liabilities;
(h) any indebtedness for borrowed money or guarantees thereof outstanding as of the Closing Date, other than current accounts payable or accrued expenses of the Sellers Relating to the Business incurred or accrued in the ordinary course of business, except to the extent it relates taken into account in the computation of Closing Working Capital;
(i) all Liabilities of a Seller relating to or arising from misclassification of any person as an independent contractor or as an exempt (vs. non-exempt employee), including but not limited to Liabilities for overtime wages, benefits and payments of employment-related Taxes;
(j) all Liabilities with respect to any Action (excluding any Action related to Pre-Closing or Post-Closing Environmental Liabilities) to the extent such Action is caused by or arises out of any Excluded Asset facts, circumstances or is not primarily related conditions existing on or prior to the Business Closing Date (and, with respect to Actions arising under or relating to Liabilities pursuant to Environmental, Health and Safety Requirements, as consistent with the Purchased Assetsparties’ rights and obligations pursuant to the “Pre-Closing Environmental Liabilities” and “Post-Closing Environmental Liabilities” definitions and the indemnity provisions in Article IX);
(xik) any Liability related to or arising out except as set forth in Section 2.4(k) of the Restructuring;
(xii) without limiting the rights Sellers Disclosure Schedule, all legal, accounting, financial advisory, consulting and obligations all other fees and expenses of the third parties under Article VIIincurred by a Seller in connection with this Agreement, any Liability for Taxes relating to Ancillary Agreement and the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01transactions contemplated hereby or thereby; and
(xiiil) any Liability arising out of a Seller under this Agreement, any Ancillary Agreement or under any side agreement between a Seller on the failure to advertise one hand and the transactions contemplated by Purchaser on the other hand entered into on or after the date of this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (New Media Investment Group Inc.)
Excluded Liabilities. Notwithstanding anything (a) Any and all Liabilities of Rafaella that are not included in Section 2.02(a) the Assumed Liabilities, whether or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing not disclosed in this Agreement or any applicable Later ClosingSchedule or Exhibit hereto (collectively, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):), shall not be assumed by Corporation and shall remain the Liabilities of Rafaella, which include, without limitation:
(i) those Liabilities not relating to or any Liability arising out of (i) the Business or the Purchased Assets (in the case conduct of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable Rafaella prior to the Business shall be excluded hereby)Closing Date, or (ii) the employment by Rafaella of any employees prior to the Closing Date, or (iii) the retention by Rafaella of any agents or contractors prior to the Closing Date, except, in each case, to the extent included as a current liability on the Closing Balance Sheet;
(ii) those any Liabilities relating arising out of actions and events occurring prior to the Closing Date the existence of which constitutes or arising from causes a breach of a representation or warranty of any Parent Plan of Rafaella and its Affiliates or for of any Business Contract to which Parent any of Rafaella or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)is a party;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Scheduleany Liability that Rafaella owes to any stockholder, subsidiary or Affiliate thereof;
(iv) those Liabilities any Liability arising under or relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the ClosingExcluded Assets;
(v) all accounts payableany Liability arising under or relating directly or indirectly to any Environmental Laws and attributable to, Expenses and Indebtedness or incurred as a result of, any acts, omissions, or conditions occurring or in existence as of Parent or its Affiliates (other than accounts payable prior to the Closing Date, including, but not limited to, liabilities for the release, handling, discharge, treatment, storage, disposal, or presence of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Hazardous Materials;
(vi) all intercompany payables and loans between Parent or any Liability of its Affiliates (other than Rafaella under any Multiemployer Plan, except, in each case, to the Transferred Subsidiaries), on extent included as a current liability in the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handClosing Balance Sheet;
(vii) (A) all obligations any Liability for claims under health insurance plans of Parent Rafaella for employees with respect to medical services rendered or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating medical expenses incurred prior to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderClosing, except, in each case, to the extent included as a current liability in the Closing Balance Sheet;
(viii) all Liabilities any Liability for or with respect to (i) income Taxes of Rafaella, (ii) Taxes of any other Person pursuant to an agreement or otherwise and (iii) Taxes relating to any confidentiality, non-solicitation or similar agreements entered into by Parent the Business or any of its Affiliates the Assets for any period ending on or its prior to the Closing Date, excluding Taxes that are the responsibility of Corporation pursuant to this Agreement or their Representatives the other Transaction Documents or are reflected as a Liability on the Closing Balance Sheet. For purposes of this clause (viii), all real and personal property Taxes levied with respect to the Business or any of the Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between the Corporation and Rafaella based upon the number of days of such period included in connection with or relating to an Acquisition Proposalthe pre-Closing Tax period (which period shall include the Closing Date) and the number of days of such Tax period after the Closing Date;
(ix) all Liabilities any Liability arising from under or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby▇▇▇▇▇▇ Lease;
(x) any Liability for any litigation, suit, action or proceeding to which Rafaella is a party or to which any of the extent it relates to or Assets is subject, that arises out of any Excluded Asset occurrence prior to the Closing Date or is not primarily related to pending as of the Business or the Purchased Assets;Closing Date regardless of when reported; and
(xi) any Liability related to or (other than the Assumed Liabilities) arising out of the Restructuring;Business and/or operations of Rafaella prior to the Closing Date regardless of when reported.
(xiib) without limiting If any Liability is partly an Assumed Liability and partly an Excluded Liability, the rights apportionment of such Liability shall be determined pursuant to equitable principles. Nothing set forth in the foregoing sentence shall be deemed to affect, amend, modify, supplement or otherwise change the definitions of Assumed Liabilities and obligations Excluded Liabilities.
(c) Rafaella shall pay, perform and discharge all of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Excluded Liabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in the provisions of Section 2.02(a) or Section 2.02(b) to 2.3 of this Agreement, Buyer shall not assume, the contrarySubsidiaries shall not retain, as and Seller shall thereafter pay, perform and discharge when due any of the Closingfollowing liabilities or obligations of Seller, its Subsidiaries or their Affiliates or the Affiliated Group (collectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “"Excluded Liabilities”"):
(ia) those Liabilities not relating except to or arising out of the Business or the Purchased Assets (extent included in the case prorations and adjustments under Section 2.12 and except as provided in Section 5.10, all debts, liabilities and obligations with respect to Taxes of those Liabilities shared by Seller, the Business and the Medical Device BusinessSubsidiaries or any consolidated, only that portion combined or unitary group of such Liabilities not attributable to the Business shall be excluded herebywhich Seller is a member (an "Affiliated Group");
(iib) those Liabilities relating to or arising from any Parent Plan or for which Parent the liabilities and obligations of Seller or its Affiliates Subsidiaries under the Shared Contracts to the extent such liabilities and obligations are responsible to be retained by Seller pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant Section 5.5;
(c) all debts, liabilities and obligations owed to the Transfer Regulations Secured Lenders (and which, including any prepayment fees) or any other indebtedness for borrowed money other than the avoidance of doubt, are intended to be included within the definition of Indebtednessguarantees set forth on Schedule 3.12(a)(vii);
(iiid) those Liabilities set forth on Section 2.02(c)(iii) any liability of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees execution, delivery or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out performance of this Agreement or any of the transactions contemplated herebySeller Ancillary Agreements;
(xe) any Liability liability or obligation to the extent it relates to or arises out of any Excluded Asset or is not primarily the Excluded Business;
(f) any liability or obligation arising out of or in any way related to the Business or Seller Benefit Plans and the Purchased AssetsSeller Severance Agreements;
(xig) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights all liabilities and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Periodthe actions, determined in accordance with the principles of Section 7.01suits, proceedings or claims listed on Schedule 2.4(g); and
(xiiih) all liabilities and obligations arising under Environmental Law and relating to any Liability arising out of properties or facilities formerly owned or formerly operated by Seller or the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Subsidiaries.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as The Purchaser shall not assume any Liabilities of the Closing, the Delayed Closing Seller or any applicable Later ClosingSeller Party, Parent or its Affiliates shall retain or assumeother than the Assumed Liabilities, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, including the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(a) any Taxes (other than one-half of all Transfer Taxes in accordance with Section 6.2(d)) of the Seller and the Seller Parties with respect to the operation of the Business for any periods (or portions thereof) prior to the applicable Effective Time applicable to the Business;
(b) all Debt of the Seller and the Seller Parties (other than the Accounts Payable and accrued expenses included in the Assumed Liabilities);
(c) except as otherwise provided in Section 6.6 and Section 6.7, any Liabilities of the Seller and the Seller Parties arising in connection with or relating to (i) those any employees of any Seller Party or (ii) any Plan of any Seller Party, in each case to the extent such Liabilities referenced in the foregoing clauses (c) and (c) above relate to the period prior to the applicable Closing Date even if instituted on and after the applicable Closing Date, including but not limited to, Liabilities related to any employees of any Seller Party under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Equal Pay Act or the Employee Retirement Security Act, any Liabilities related to unpaid wages, bonuses or benefits, any Liabilities for tort claims, any Liabilities under federal, state or municipal statutes or ordinances relating to unlawful discrimination or harassment, including any wrongful discharge claim cognizable under the Laws of any state;
(d) any Liabilities of the Seller and the Seller Parties arising out under any Assigned Contracts, Real Property Lease or Tenant Lease to the extent such Liabilities (i) relate to the period prior to the applicable Effective Time or (ii) are not Accounts Payable or other accrued expenses described in Section 2.3(f);
(e) any Liabilities arising in respect of Actions and Proceedings pending before the applicable Closing Date or to the extent against or giving rise to Liability against the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable prior to the Business shall be excluded hereby)applicable Closing Date even if instituted on and after the applicable Closing Date;
(iif) those except as otherwise provided in Section 6.7(d), any Liabilities relating related to the WARN Act with respect to employees, and for any action resulting from employees’ separation of employment, in each case arising prior to or on the applicable Closing Date;
(g) except as otherwise provided by Section 2.3(f), any Liabilities with respect to any employees listed on Schedule 4.11(a) of the Disclosure Schedules related to the period prior to the applicable Closing Date;
(h) any Liability arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation the Excluded Assets including all Liabilities of Law by the Buyer each Non-Transferred Facility or its Affiliates pursuant related to the Transfer Regulations (and which, for operations or assets of the avoidance of doubt, are intended to be included within the definition of Indebtedness)Non-Transferred Facilities;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (Bi) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to alleged or asserted violations of the Referral Laws, the federal False Claims Act (31 U.S.C. §§ 3729-3733) or qui tam actions arising thereunder or under similar state false claims prohibitions (regardless of whether any Actions involving Parent Governmental Authority has intervened) pending before the applicable Closing Date or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates against or giving rise to or arises out of any Excluded Asset or is not primarily related to Liability against the Business or the Purchased AssetsAssets prior to the applicable Closing Date even if instituted on and after the applicable Closing Date;
(xij) any Liability related to or and all Liabilities accruing, arising out of of, or relating to any federal, state or local investigations of, or claims or actions against, Seller, any Seller Party or any Employee, medical staff, agents, vendors or representatives with respect to acts or omissions prior to the Restructuringapplicable Closing Date even if instituted on and after the applicable Closing Date;
(xiik) without limiting any and all Liabilities or obligations in respect of periods prior to Closing arising under the rights terms of any healthcare payment programs related to Titles XVIII and obligations XIX of the parties under Article VIISocial Security Act, the Medicare and Medicaid programs, the CHAMPUS/TriCare program, and any Liability other state or federal healthcare payment program or any commercial Third Party Payor Program, including for Taxes recoupment or overpayments or for any retroactive denial of claims and any civil monetary penalties or other fines or penalties relating to the period prior to the applicable Closing Date imposed by any Governmental Authority;
(l) other Liabilities to the extent arising from the conduct of the Business or to the Purchased Assets with respect (and the use thereof) prior to any Pre-the applicable Closing Tax Period, determined in accordance with Date even if instituted on and after the principles of Section 7.01applicable Closing Date; and
(xiiim) any Liability arising out all causes or rights of action of the failure to advertise Seller or the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of Seller Parties, including any warranty or product liability claims, other than the Insolvency Act (South Africa)Transferred Claims.
Appears in 1 contract
Excluded Liabilities. Buyer is assuming only the Assumed Liabilities from Seller and the Retained Subsidiaries and is not assuming any other Liability of Seller or any of the Retained Subsidiaries of whatever nature, whether presently in existence or arising hereafter. All such other Liabilities shall be retained by and remain Liabilities of Seller or the Retained Subsidiaries, as applicable (all such Liabilities not being assumed being herein referred to as the “Excluded Liabilities”). Notwithstanding anything to the contrary contained in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for2.04, the following Liabilities of Parent or its Affiliates (Seller and the “Retained Subsidiaries shall be Excluded Liabilities”)::
(ia) those all Liabilities not relating to or the extent arising out of or relating to the Business operation or conduct by Seller or any of its Subsidiaries of any Retained Business;
(b) all Liabilities to the Purchased Assets extent arising out of or relating to any Excluded Asset;
(in the case of those c) all Liabilities shared by the Business and the Medical Device Business, only that portion of under any Retained Benefit Plan (other than such Liabilities not attributable described in Section 2.04(a) or expressly assumed by Buyer pursuant to the Business shall be excluded herebySection 7.05 or Article 9);
(iid) those with respect to Transferred Employees, all Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible expressly retained by Seller pursuant to Section 7.05 or Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)9;
(iiie) those all Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product such Liabilities described in Section 2.04(a) or packaging complaints that do not arise out expressly assumed by Buyer pursuant to Section 7.05 or Article 9) relating to current or former employees of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent Seller or any of its Affiliates (other than the Transferred SubsidiariesEmployees), on the one hand, and any Affiliates of Parent ;
(f) all Indebtedness (other than the Transferred Emerson Slovakia Loan Agreement and Indebtedness solely among the Purchased Subsidiaries), on the other hand;
(viig) all PTS Hedging Contracts;
(Ah) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or and expenses for which Parent or its Affiliates are expressly Seller is responsible for hereunderpursuant to Section 13.03;
(viiii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives the Seller and the Retained Subsidiaries for Taxes; and
(j) (A) all Liabilities in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability Third Party Claim whenever filed to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations human exposure to asbestos-containing materials actually or allegedly contained in products manufactured, distributed or sold by or on behalf of the parties under Article VII, any Liability for Taxes Business (other than a Purchased Subsidiary) prior to the Effective Time and (B) all Environmental Liabilities to the extent relating to any real property or facilities formerly owned, leased or operated by the Purchased Assets with respect to Business or any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out predecessor of the failure to advertise Business (in each case, other than by any Purchased Subsidiary or any predecessor thereof) that is not owned, leased or operated by the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of Business at the Insolvency Act (South Africa)Effective Time.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Regal Beloit Corp)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to Other than the contraryAssumed Liabilities, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicableBuyer is not, and shall not be responsible for payingdeemed to be, performing and discharging when dueassuming or taking the Purchased Assets subject to any obligations or liabilities of Seller or any of its Affiliates, and none of Buyer any kind or its Affiliates shall assume nature whatsoever, whether known or have any responsibility forunknown, fixed or contingent, including the following Liabilities of Parent or its Affiliates (collectively, the “Excluded Liabilities”):
(ia) those any Liability in respect of any Excluded Asset;
(b) all Pre-Closing Tax Liabilities;
(c) all Pre-Closing Employee Liabilities not (including any worker compensation claims for Employees relating to events or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable injuries occurring prior to the Business shall be excluded herebyClosing Date (whether or not such claims are made prior to the Closing Date));
(d) all Liabilities of Seller (i) that by their terms should have been performed prior to the Closing Date, (ii) those Liabilities arising out of events or occurrences (including for acts, claims, or pending or threatened litigation) relating to the Purchased Assets, in each case, occurring prior to the Closing Date, in each case, other than the Assumed Liabilities (without regard to when such events or arising occurrences are known by Seller), and/or (iii) from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant claims incurred prior to the Transfer Regulations (and whichClosing Date, for including those which arise or are reported after the avoidance of doubtClosing Date which relate to pre-Closing events or occurrences, are intended in each case, to be included within the definition of Indebtedness)extent not otherwise an Assumed Liability;
(iiie) those all liabilities of Seller and its Affiliates not arising out of or resulting from the Property or the operation and support of the business located at the Property; and
(f) all Environmental Liabilities set forth on Section 2.02(c)(iii1.3(f) of the Seller Disclosure ScheduleLetter;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viiig) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
Seller Benefit Plans (xi) any Liability related except as otherwise specifically assumed by Buyer pursuant to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.017.5); and
(xiiih) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)all Intercompany Payables.
Appears in 1 contract
Sources: Asset Purchase Agreement (Trump Entertainment Resorts Holdings Lp)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as except for the Assumed Liabilities in Section 2.5(a), Seller shall retain and remain exclusively liable for any Liabilities of Seller, whether or not disclosed to Purchaser on any Schedule hereto, and Purchaser shall not assume or in any way be liable therefor. Without limiting the generality of the Closingforegoing, the Delayed Closing or any applicable Later Closingexcept as expressly provided in Section 2.5(a), Parent or its Affiliates Purchaser shall not assume, and Seller shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility remain exclusively liable for, the following any of Seller’s Liabilities arising out of Parent or its Affiliates (the “Excluded Liabilities”):
constituting any and all: (i) those Indebtedness; (ii) accrued interest related to Indebtedness; (iii) forms of payables or other Liabilities to Seller or any Affiliates thereof; (iv) capital leases on any equipment that is not relating to a Purchased Asset; (v) obligations as guarantor of another’s debts or obligations; (vi) Liabilities of Seller (or any of its Affiliates) for any Taxes, whether historical, current or deferred Taxes, and any related Tax matters; (vii) environmental or litigation matters; (viii) Liabilities arising out of the Business employee or the Purchased Assets benefit matters, including my Employee Benefit Plans or Benefit Arrangements; (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(iiix) those Liabilities outstanding obligations relating to agreements with former employees of Seller or arising from any Parent Plan or for Affiliate thereof; (x) contingent Liabilities; (xi) Contracts that are not Assumed Contracts; (xii) Liabilities under any Assumed Contracts which Parent or its Affiliates are responsible pursuant to Article VI arise after the Closing but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury or relate to person or property and other than product recalls) for products a breach of the Business sold such Contract by Seller occurring prior to the Closing;
; (vxiii) all accounts payable, Expenses and Indebtedness of Parent Liabilities to be borne by Seller hereunder (including any legal or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
); (xxiv) any Liability to the extent it relates to Proceedings, whether or arises out of any Excluded Asset or is not primarily related to the Business Business, existing on the Closing Date, including those listed in the Schedules hereto; (xv) actions or the Purchased Assets;
omissions of Seller, any predecessor of Seller or any former or current employees of Seller or any Affiliate thereof; (xixvi) any Liability Liabilities that were incurred or are related to any business of Seller other than the Business; or arising out (xvii) Liabilities that were not incurred directly in connection with the operations of the Restructuring;
(xiiBusiness. All Liabilities that are not to be assumed by Purchaser pursuant to this Section 2.5(b) without limiting are collectively referred to as the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)“Excluded Liabilities”.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cover All Technologies Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) Buyer shall not assume and shall not be responsible to pay, perform or Section 2.02(b) to the contrary, as discharge any of the Closing, the Delayed Closing liabilities or obligations of Seller or any applicable Later Closing, Parent or of its Affiliates shall retain or assumethat are not Assumed Liabilities (collectively, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). Excluded Liabilities include the following liabilities and obligations of Seller or any of its Affiliates:
(i) those all Accounts Payable relating the Business prior to the Economic Cutoff Time;
(ii) other than the liabilities specified as Assumed Liabilities not in Section2 ..3 , (i) all liabilities and obligations arising out of, or relating to, the operation of the Business, including the owning or holding of the Purchased Assets, prior to the Economic Cutoff Time and (ii) all liabilities and obligations relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Excluded Assets;
(iii) those Liabilities set forth on Section 2.02(c)(iii(A) all Taxes (other than any Prorated Taxes or Transfer Taxes) of Seller or any its Affiliates for any Tax period and (B) all Prorated Taxes for the Seller Disclosure Scheduleportion of any Straddle Period prior to the Economic Effective Date (determined in accordance with Section 6.6);
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products as set forth in Section 6.3, all of the Business sold prior to liabilities and obligations under the Closing;
(v) all accounts payablebenefit and compensation agreements, Expenses plans and Indebtedness of Parent arrangements sponsored or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent maintained by Seller or any of its Affiliates (other than the Transferred Subsidiariesincluding all Employee Plans), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;; and
(vii) (Av) all liabilities and obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent Seller or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of under this Agreement or the transactions contemplated herebyother Transaction Documents;
(xvi) any Liability Any liability owed to BP Energy Company pursuant to that certain Preferred Supplier Agreement, dated effective August 23, 2016, as amended by that certain First Amendment, dated effective as of November 3, 2017, as further amended by that Second Amendment, dated effective as of February 27, 2019, as further amended by that Third Amendment, dated effective January 1, 2021, or that certain Transaction Confirmation (BP Contract ID: 22906), with a trade date of August 26, 2021, related to purchase and sale of natural gas prior to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VIIEconomic Effective Date or, any Liability for Taxes relating to the Purchased Assets with respect to any Preindexed-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
priced natural gas (xiiiidentified as tier 2 sales therein) any Liability arising out liability occurring after the month of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)February 2022.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Buyer shall retain or assume, as applicable, not assume and shall not be responsible for payingto pay, performing and discharging when dueperform or discharge any Liabilities or obligations of Seller other than the Assumed Liabilities (collectively, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any accrued expenses, accounts payable, and deferred revenue of the Business as of the Closing Date;
(b) any Liabilities or obligations arising out of or relating to (i) those Seller’s ownership or operation of the Business prior to the Closing Date, (ii) Seller’s ownership of the Purchased Assets prior to the Closing Date, and (iii) the Assigned Contracts prior to the Closing Date;
(c) any Liabilities not or obligations relating to or arising out of the Business Excluded Assets;
(d) any Liabilities or obligations for (i) Taxes relating to the Business, the Purchased Assets (in or the case of those Assumed Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable for any taxable period ending on or prior to the Business shall be excluded hereby)Closing Date and (ii) Taxes for which Seller is liable pursuant to Section 6.06 and Section 6.07;
(iie) those other than the Separation Pay and except as provided in the Transition Services Agreement, any Liabilities relating of Seller arising under or in connection with any benefits, compensation or other arrangements with respect to any present or former employee or service provider of Seller;
(f) any Liabilities or obligations arising from any Parent Plan or for which Parent incurred by Seller or its Representatives or Affiliates are responsible pursuant to Article VI but excluding Employment Related in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(g) any Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer pending or its Affiliates pursuant to the Transfer Regulations (and whichthreatened Action arising out of, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products otherwise in respect of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness operation of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) , including without limitation any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Prematter ▇▇▇-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)▇▇▇▇▇ Contractors v. ▇.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, the parties expressly acknowledge and agree that neither the Buyer nor any Buyer Designee shall assume, be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of the Selling Entities, whether existing on the Closing Date or arising thereafter as a result of any act, omission or circumstances taking place prior to the Closing, other than the Delayed Closing or Assumed Liabilities (all such Liabilities that neither the Buyer nor any applicable Later Closing, Parent or its Affiliates shall retain or assume, Buyer Designee is assuming being referred to collectively as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). Without limiting the foregoing, the Buyer shall not be obligated to assume, and does not assume, and hereby disclaims all the Excluded Liabilities, including the following Liabilities of any of the Selling Entities or of any predecessor of any of the Selling Entities, whether incurred or accrued before or after the Petition Date or the Closing:
(a) all Taxes of the Selling Entities, including Taxes imposed on the Selling Entities under Treasury Regulations Section 1.1502-6 and similar provisions of state, local or foreign Tax law, other than (i) those Transfer Taxes and other Taxes payable by the Buyer pursuant to Section 7.8 and (ii) any Taxes to the extent and in the amount included as a liability in the calculation of the Closing Net Working Capital Amount, as finally determined in accordance with Section 3.2;
(b) all Liabilities not of the Selling Entities relating to legal services, accounting services, financial advisory services, investment banking services or arising out any other professional services (“Professional Services”) performed in connection with this Agreement and any of the Business transactions contemplated hereby, and any pre-Petition (or the Purchased Assets (in the case of those Liabilities shared the CCAA Case, pre-filing) or post-Petition (or in the case of the CCAA Case, post-filing) Claims for such Professional Services;
(c) except to the extent expressly assumed by the Business Buyer pursuant to Sections 7.7.(a)(ii), 7.7(d), 7.7(e) and the Medical Device Business7.7(f), only all Liabilities arising out of, relating to, or with respect to any Seller Benefit Plan (including any Liabilities related to any Seller Benefit Plan which is an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that portion is subject to Section 302 or Title IV of such Liabilities not attributable to the Business shall be excluded herebyERISA or Code Section 412);
(iid) those except, in each case, to the extent expressly assumed by Buyer pursuant to Sections 7.7(a), 7.7(d), 7.7(e), 7.7(f) and 7.7(g), all Liabilities or claims arising out of, relating to or with respect to the employment or performance of services for, or termination of employment or services for, or potential employment or engagement for the performance of services for, any of the Selling Entities (or any predecessor) of any individual Person (including the Transferred Employees) or any Person acting as a professional employer organization, employee leasing company or providing similar services on or prior to the Closing (including as a result of the transactions contemplated by this Agreement), including Liabilities or claims for workers’ compensation, severance (including statutory severance), separation, termination, or notice pay or benefits (including under COBRA), claims under the WARN Act, or any other form of accrued or contingent compensation (including leave entitlements), irrespective of whether such Liabilities or claims are paid or made, as applicable, on, before or after Closing;
(e) all Liabilities with respect to any Excluded Employee or Former Employee with respect to any period, other than (1) Liabilities expressly assumed by the Buyer pursuant to Section 7.7(f) and (2) Liabilities, if any, pursuant to a Canadian Benefit Plan Buyer elects to assume under Section 7.7(a)(ii), if any;
(f) all Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Excluded Assets;
(iiig) those all accounts payable and other amounts payable of any Selling Entity owed by it to any other Selling Entity or the Acquired Subsidiary and all Liabilities arising as a result of effecting the matters set forth on in Section 2.02(c)(iii) of the Seller Disclosure Schedule7.15;
(ivh) those all Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold Selling Entities arising under or pursuant to Environmental Laws, including with respect to any real property owned, operated, leased or otherwise used by any Selling Entity, whether or not used in the Business, including any Liabilities for noncompliance with Environmental Laws or the release of hazardous materials by any Selling Entity on or prior to the Closing, whether known or unknown as of the Closing;
(vi) all accounts payable, Expenses and Indebtedness Liabilities of Parent or its Affiliates (other than accounts payable the Selling Entities arising as a result of any Transferred Subsidiary included Action initiated at any time, to the extent related to the Selling Entities or the Purchased Assets on or prior to the Closing Date (except to the extent that any such Liability is an Assumed Liability), including all Liabilities of the Selling Entities arising in connection with the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiaryActions set forth on Schedule 2.4(i);
(vij) all intercompany payables and loans between Parent or any Liabilities of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates Selling Entities in respect of Parent (other than the Transferred Subsidiaries), on the other handIndebtedness;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixk) all Liabilities arising from in connection with any violation of any applicable Law or Order relating to any Actions involving Parent or the period prior to the Closing by any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated herebySelling Entities, including any Environmental Law;
(xl) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assetsall Cure Payments;
(xim) any other Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating Selling Entities that arises in relation to the Purchased Assets with respect period prior to any Pre-the Closing Tax Period, determined in accordance with and is not expressly included among the principles of Section 7.01Assumed Liabilities; and
(xiiin) all costs and expenses payable in connection with obtaining any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Necessary Consents.
Appears in 1 contract
Sources: Asset Purchase Agreement (Eddie Bauer Holdings, Inc.)
Excluded Liabilities. Notwithstanding anything the -------------------- provisions of Section 1.4, it is expressly understood and agreed that there shall be excluded from the liabilities and obligations being assumed by Purchaser hereunder the following liabilities and obligations of Seller or any of its Subsidiaries, whether or not an Acquired Company (collectively, the "EXCLUDED LIABILITIES"), and that references herein to Assumed Liabilities shall not include the Excluded Liabilities:
(a) the indebtedness for borrowed money of Seller or any of its Subsidiaries, except to the extent reflected in Closing Cash (which amount shall not be in excess of U.S.$5 million);
(b) any liability or obligation in respect of Taxes for which Seller is liable pursuant to Section 2.02(a14.1;
(c) any liability or obligation for which Seller or any of its Subsidiaries (other than the Acquired Companies) is made responsible pursuant hereto or to the Separation Agreements;
(d) all Environmental Claims related to or arising from the operations of Seller or its Subsidiaries (other than the Acquired Companies) or Section 2.02(btheir respective predecessors or the use of their assets (including the Purchased Assets) at the (i) Springfield, Massachusetts facility prior to the contraryClosing Date or (ii) Nitro, as West Virginia facility or LaSalle on, after or prior to the Closing Date, in each case, except to the extent set forth in the Separation Agreements (the "RETAINED ENVIRONMENTAL LIABILITIES");
(e) any inter-company payables, or inter-company loans owed to the Business from Seller or any Subsidiary (other than the Acquired Companies); and
(f) all liabilities or obligations of the ClosingLiquidating Companies and all liquidator's liabilities arising out of or resulting from the liquidation of the Liquidating Companies;
(g) all liabilities or obligations relating to LaSalle (except as provided in the Separation Agreements and for trade payables and sales rebates Related to the Business and liabilities and obligations under Business Contracts), including all liabilities relating to the Delayed Closing ▇▇▇▇▇▇▇ Agreement and the Hercules Agreement;
(h) all liabilities or any applicable Later Closingobligations relating to the Nitro, Parent or its Affiliates shall retain or assume, West Virginia facility (except as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, provided in the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):Separation Agreements);
(i) those Liabilities not all liabilities or obligations relating to the Springfield, Massachusetts facility (except as provided in the Separation Agreements or arising out of the Business or as are related to the Purchased Assets (in at such facility or the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded herebyoperation thereof);; and
(iij) those Liabilities relating any liability or obligation arising in connection with or related to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed violations by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and Subsidiaries of any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers Competition Laws relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)concerning rubber chemicals.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closingcontrary in this Agreement, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Assumed Liabilities shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility fornot include the following (collectively, the following Liabilities of Parent or its Affiliates (the “"Excluded Liabilities”"):
(i) those Liabilities all liabilities and obligations relating exclusively or primarily to the Excluded Assets;
(ii) all liabilities and obligations for Taxes (whether or not reflected on the Most Recent Balance Sheet) relating to all periods ending on or prior to the Closing, determined in accordance with Section 8.2;
(iii) all liabilities and obligations of the Sellers in respect of employees or employee benefits retained by a Seller pursuant to Article IX;
(iv) all liabilities and obligations of the Sellers under the agreements listed on Schedule 1.1(d)(iv);
(v) all liabilities and obligations of the Sellers under this Agreement or any Ancillary Agreement;
(vi) all liabilities and obligations of any Seller for costs and expenses incurred in connection with this Agreement or the consummation of the transactions contemplated by this Agreement (including without limitation any fees for financial advisors engaged by or on behalf of the Sellers) and any Taxes arising in connection with the consummations of the transactions contemplated hereby (other than Taxes referred to in Section 8.1(d));
(vii) all liabilities and obligations arising out of disallowances, redeterminations and reallocations of overhead charges and other allocated expenses and rates included in costs incurred on or prior to the Closing under any Government Contract included in the Acquired Assets, but only to the extent such overhead charges and allocated expenses and rates relate exclusively or primarily to operations of Raytheon other than the AIS Business;
(viii) all accounts payable or similar payment obligations by the AIS Business to Raytheon or any Subsidiary of Raytheon; and
(ix) all liabilities and obligations of the Sellers relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Bombardier Litigation.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) the foregoing or Section 2.02(b) any other provision of this Agreement to the contrary, as Genius will, without any responsibility or recourse to Distributor, any of the Closingits affiliates, the Delayed Closing or any applicable Later Closingof their respective directors, Parent officers, members, shareholders, officers, employees, agents, consultants, representatives, successors or its Affiliates assigns, absolutely and irrevocably be and shall retain remain solely liable for, and Genius is not assigning, transferring or assumesetting over to the Distributor, as applicableand the Distributor is not assuming, and shall not be responsible for payingdeemed to have assumed, performing and discharging when dueany of the burdens, and none obligations or liabilities of Buyer Genius or its Affiliates shall assume any Genius Subsidiary (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, implied, vicarious, derivative, joint, several or have any responsibility forsecondary liability) (collectively, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):), unless the terms of this Agreement specifically state that such liability or obligation shall transfer to or be the responsibility of the Distributor, including, without limitation:
(i) those Liabilities not relating to or all liabilities and obligations of Genius and the Genius Subsidiaries arising out of the Business ownership or operation of the business of Genius and its Subsidiaries or the Purchased ownership, use, possession or condition of the Transferred Assets prior to the Closing, other than (A) those which have been reserved, reflected or accrued on the September 30 Balance Sheet, (B) those arising after the date of the September 30 Balance Sheet in the case ordinary course of those Liabilities shared by the Business business of Genius and the Medical Device Business, only that portion of such Liabilities Genius Subsidiaries in connection with activities permitted by Section 4.2 hereof (but not attributable to the Business shall be excluded hereby);
(iiincluding any liabilities described in Sections 1.1(c)(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
below), and (ivC) those Liabilities arising under any contract, agreement or commitment which is being assigned to the Distributor hereunder other than liabilities or obligations relating to any breach thereof by Genius or arising out of product warranty obligations (express or implied) and product liability claims (the other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold parties thereto occurring prior to the Closing;
(ii) all liabilities and obligations arising out of any violation or alleged violation by Genius or any Genius Subsidiary of any Legal Requirement prior to, on or following the Closing, whether or not reserved, reflected or accrued on the September 30 Balance Sheet, except for (A) such liabilities and obligations arising out of any violation or alleged violation by the Distributor or any of its subsidiaries on or following the Closing or (B) such liabilities and obligations of the Distributor or any of its subsidiaries arising out of the Transaction Agreements or any of the transactions contemplated thereby;
(iii) all liabilities and obligations arising out of any Action or Legal Proceeding commenced against Genius or any Genius Subsidiary on or prior to the Closing, and any Action or Legal Proceeding commenced following the Closing against Genius or any Genius Subsidiary to the extent relating to any transactions, events or other circumstances of Genius or any Genius Subsidiary occurring or existing on or prior to the Closing, whether or not reserved, reflected or accrued on the September 30 Balance Sheet, and whether or not such Actions or Legal Proceedings are identified on the Genius Disclosure Letter;
(iv) all liabilities and obligations of Genius or any Genius Subsidiary arising out of the Excluded Assets, other than prospective liabilities arising after the Closing under Genius’s employee benefit plans;
(v) all accounts payablewith respect to contracts assignable to the Distributor as Transferred Assets but that are not assigned as of the Closing because of (A) a failure to receive any necessary consent, Expenses and Indebtedness approval or waiver of Parent or its Affiliates a third party, (other than accounts payable B) because that assignment would violate the rights of any third party in such Transferred Subsidiary included Asset, which violation would adversely affect the expected benefits or increase the expected costs or liabilities to the Distributor under the Transferred Asset, or (C) otherwise affect adversely the rights of the Distributor in the calculation Transferred Asset (together, the “Unassigned Contracts”), all amounts by which the aggregate value of Net Working Capital and Indebtedness the benefit that would otherwise be received by the Distributor under the Unassigned Contracts or any portion thereof, to the extent such amounts exceed the benefits received by the Distributor under Alternate Arrangements, exceeds $500,000, such aggregate value to be calculated based on the discounted future revenues reasonably expected to be received under such Unassigned Contracts as of any Transferred Subsidiary)the Closing Date;
(vi) all intercompany payables liabilities and loans between Parent obligations under or arising in connection with the Financing Commitments, including, without limitation, any of its Affiliates (liabilities, obligations, damages or interest relating to Genius’s failure to file or keep effective a registration statement with respect to, or to otherwise effect the registration of, registrable securities pursuant to any registration rights agreement, warrant or other than agreement entered into by Genius in connection with the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handFinancing Commitments;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;Registration Rights Agreement; and
(viii) all Liabilities relating to any confidentialityburdens, non-solicitation obligations or similar agreements entered into by Parent liabilities (i) of Genius or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability Genius Subsidiary for Taxes relating to the Purchased Assets imposed with respect to any Pre-Closing Tax Periodall periods prior to the Closing, determined in accordance with and (ii) of Genius for Taxes for all periods after the principles of Section 7.01; and
(xiii) any Liability arising out of Closing, other than Taxes, if any, for which the failure Distributor is obligated to advertise reimburse Genius pursuant to the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Services Agreement.
Appears in 1 contract
Sources: Master Contribution Agreement (Genius Products Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closingcontrary herein, the Delayed Closing Buyer shall not assume or be obligated to pay, perform or otherwise discharge or in any applicable Later Closing, Parent other manner be liable or its Affiliates shall retain or assume, as applicable, and shall be responsible for payingany Liabilities of, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility forProceeding against, the following Selling Entities, other than the Assumed Liabilities of Parent or its Affiliates (all such Liabilities that the Buyer is not assuming being referred to collectively as the “Excluded Liabilities”):). The Excluded Liabilities include the following, other than the Assumed Liabilities:
(a) all Liabilities for Taxes (i) those with respect to the Purchased Assets for any Pre-Closing Tax Period (as determined in accordance with Section 7.7(b)) and (ii) of the Selling Entities, in each case excluding any Transfer Taxes;
(b) all other Liabilities not relating to the Purchased Assets, to the extent such Liabilities arise prior to the Closing or arising out relate to events, facts and circumstances first existing prior to the Closing, other than any Assumed Liabilities;
(c) (i) the Liabilities of the Business Selling Entities arising under the Assumed Agreements or the Assumed Real Property Leases to the extent such Liabilities arise prior to the Petition Date or relate to events, facts and circumstances first existing prior to the Petition Date; and (ii) all other Liabilities relating to the Purchased Assets (other than the Liabilities arising under the Assumed Agreements or the Assumed Real Property Leases), to the extent such Liabilities arise prior to the Closing or relate to events, facts and circumstances first existing prior to the Closing, in the case of those Liabilities shared by the Business each of clauses (i) and the Medical Device Business(ii), only that portion of such Liabilities not attributable to the Business shall be excluded hereby)other than any Cure Payments and any Assumed Liabilities;
(iid) those all Liabilities primarily relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);Excluded Assets; and
(iiie) those the Liabilities set forth listed on Section 2.02(c)(iii2.4(e) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).
Appears in 1 contract
Sources: Asset Purchase Agreement (Virgin Orbit Holdings, Inc.)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Purchaser shall retain or not assume, as applicable, and shall be responsible for payingdeemed not to have assumed, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates the Company, other than the Assumed Liabilities (the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for . For the avoidance of doubt, are intended to be included within the definition of Indebtedness)Excluded Liabilities shall include the following Liabilities:
(a) All outstanding Indebtedness and other amounts owing under, and any other Liabilities arising out of, the Credit Agreements;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixb) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or Excluded Assets, including the transactions contemplated herebyExcluded Agreements;
(xc) any Liability all Liabilities of the Company under the Assumed Agreements that arise out of or relate to the extent it relates to or arises out of any Excluded Asset or is not primarily related period prior to the Business or the Purchased AssetsClosing Date, other than Cure Costs;
(xid) except as otherwise provided in Article XI, all Liabilities for Taxes of or payable by the Company, and any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability Liabilities for Taxes relating to the Purchased Assets or the Casino Business for any Tax periods (or portions thereof) ending on or before the Closing Date;
(e) all Liabilities arising out of or relating to any Company Benefit Plan (except with respect to Liabilities assumed by Purchaser pursuant to Section 9.1);
(f) all Liabilities of the Company with respect to accrued payroll obligations (including accrued payroll Taxes), bonuses, vacation, holiday and other paid time off and severance or other termination pay of the Employees that are not Transferred Employees;
(g) all Liabilities of the Company under this Agreement and the Ancillary Agreements;
(h) all Liabilities of the Company in respect of Indebtedness under any Pre-Closing Tax Period, determined in accordance with promissory notes to its members;
(i) all Liabilities of the principles of Section 7.01Company set forth on Schedule 2.4; and
(xiiij) any Liability arising out all Liabilities of the failure Company for which Purchaser is not liable pursuant to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under express terms of Section 34 of the Insolvency Act (South Africa)9.1.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to Seller, Sigma and the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Sigma Entities and their respective Affiliates shall retain or assume, as applicableretain, and shall be responsible for paying, performing and discharging when due, and none of Buyer or Purchaser and its Affiliates shall not assume or have any responsibility for, the (i) Liabilities of Seller, Sigma, the Sigma Entities and their Affiliates which are not Assumed Liabilities herein and (ii) the following Liabilities of Parent or its Affiliates (clauses (i) and (ii), collectively, the “Excluded Liabilities”):
(ia) any and all Liabilities to the extent arising out of or relating to the Excluded Assets;
(b) except for those Liabilities not described in Section 1.3(d), Section 1.3(f), Section 1.3(h), and Section 1.3(j), any and all Liabilities arising out of or relating to the ownership or arising out use of the Purchased Assets or the operation or conduct of the Business prior to the Closing, except to the extent that any such Liabilities are the responsibility of Purchaser pursuant to this Agreement or any of the Ancillary Agreements;
(c) any Retained Employment Liabilities;
(d) any and all Liabilities related to Employee Benefit Plans other than those allocated to Purchaser as set forth in Article V or otherwise set forth on Schedule 1.3(c) or (ii) as may be required to be assumed by Purchaser or its Affiliates under applicable Law;
(e) any and all Environmental Liabilities relating to the ownership or operation of the Business or the ownership, use, possession or condition of the Purchased Assets (in the case of those Liabilities shared by including the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(iiReal Property) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(vf) except for those Liabilities described in Section 1.3(d), Section 1.3(f), Section 1.3(h), and Section 1.3(j), any and all accounts payableobligations required to be performed prior to the Closing under any Specified Business Contract, Expenses Business Permit, Environmental Permit, or other Permit or Contract assigned to Purchaser as part of the Purchased Assets, including, subject to Section 1.11, any and Indebtedness all Seller Portion of Parent or its Affiliates (other than accounts payable the Shared Contract Liabilities but excluding the Purchaser Portion of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Shared Contract Liabilities;
(vig) any and all intercompany Liabilities for any trade, accounts, note or loan payables for goods and loans between Parent services purchased by or any of its Affiliates (other than provided to the Transferred Subsidiaries), on Business prior to the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handClosing;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (Bh) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderExcluded Taxes;
(viiii) any and all Liabilities relating to any confidentialityAction arising prior to the Closing, non-solicitation or similar agreements entered into by Parent or including the Specified Litigation;
(j) any Liabilities to the extent arising out of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposalor in respect of (i) obligations arising from alleged or actual hazard or defects in design, manufacturing, marketing, manufacture, materials, workmanship, provision or performance, including any failure to warn, with respect to products of the Business manufactured prior to Closing, or (ii) obligations relating to recalls of any such product sold by the Business prior to Closing due to alleged or actual hazard or other defects affecting the safety of such products, it being understood that Purchaser and the Purchaser Entities shall have the obligation to repair or replace any such products in (i) or (ii), at Seller’s sole cost and expense;
(ixk) all any Liabilities of Sigma, Seller and their respective Affiliates arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of under this Agreement or any Ancillary Agreement (to the transactions contemplated herebyextent applicable);
(xl) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily and all Liabilities related to the Business or the Purchased Assets;
Seller Transaction Expenses, except as otherwise specified herein (xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined including in accordance with the principles of Section 7.0111.3); and
(xiiim) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africaother Liabilities set forth on Schedule 1.4(m).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Except as expressly set forth in Section 2.02(a) 3.1 above, Purchaser is not assuming or Section 2.02(b) agreeing to the contrary, as pay or perform any Liabilities or Contracts of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicableSeller, and shall be responsible for paying, performing all Liabilities and discharging when due, and none Contracts of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (Seller not expressly set forth in Section 3.1 above as being assumed by Purchaser are referred to as the “Excluded Liabilities”):. Without limiting the generality of the foregoing and except as expressly set forth in Section 3.1 above, the following Liabilities and Contracts of Seller are part of and shall constitute Excluded Liabilities:
(ia) those Liabilities not any Liability for accounts payable, accrued expenses or other accrued liabilities;
(b) any Liability relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Excluded Asset;
(c) any Liability, the Basis of which is Seller’s (i) default under any Contract, (ii) tort, (iii) those Liabilities set forth infringement of any third party Intellectual Property, (iv) violation of any Legal Requirement, or (v) product defect or breach of warranty;
(d) any Liability for bank, term or other similar debt;
(e) except as provided in Section 9.6, any Liability of Seller under this Agreement or on account of any of the transactions contemplated hereby, including any Liability of Seller to attorneys, accountants, brokers or others for services rendered or expenses incurred by or on behalf of Seller, and all other expenses of the Seller associated with the transfer of the Purchased Assets and/or the Assigned Rights;
(f) any wages, salary, severance, bonuses, commissions, vacation or holiday pay, post retirement medical benefits, fringe benefits, long-term disability benefits, life insurance
(g) benefits, any duties, obligations or liabilities arising under any employee benefit plan, policy or practice, whether defined by Section 2.02(c)(iii3(3) of the Seller Disclosure Schedule;
Employee Retirement Income Security Act of 1974, as amended and in effect (iv“ERISA”) those Liabilities or otherwise, relating to the employees of Seller or arising out of product warranty obligations (express other amounts due to any employees or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products former employees of the Business sold Seller that accrue prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiiih) any Liability arising out Liabilities that would arise as either a result of a breach of any of Seller’s representations and warranties hereunder or under any of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. Ancillary Agreements, or a breach of any of Seller’s covenants or agreements hereunder or under Section 34 any of the Insolvency Act (South Africa)Ancillary Agreements. All of the Excluded Liabilities shall be the sole responsibility and obligation of Seller. Seller shall pay, honor and discharge all Excluded Liabilities when due and payable in accordance with and subject to the terms and conditions of any relevant governing Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Alarm Services Group Inc)
Excluded Liabilities. Notwithstanding It is expressly understood and agreed that, -------------------- notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, as of Assumed Liabilities shall not include the Closingfollowing (collectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “"Excluded Liabilities”):"): --------------------
(i) those Liabilities not relating to or All liabilities arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable relating to the Business shall be excluded hereby)Excluded Assets;
(ii) those Liabilities relating All liabilities with respect to any claim for personal injury, bodily injury or property damage, including any such claim based on any alleged failure to warn, related to or arising resulting from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed product (A) manufactured and sold by operation of Law by the Buyer or its Affiliates pursuant Seller prior to the Transfer Regulations Closing Date, but only to the extent that a claim with respect to such injury or damage is asserted prior to the six-month anniversary of the Closing Date, or (and whichB) that constituted, for on the avoidance Closing Date, finished goods in inventory, but only to the extent that a claim with respect to such injury or damage is asserted prior to the six-month anniversary of doubt, are intended to be included within the definition of Indebtedness)Closing Date;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the All liabilities and obligations for which Seller Disclosure Schedulehas expressly assumed responsibility pursuant to this Agreement in accordance with Articles VIII and IX;
(iv) those Liabilities relating to All debts, liabilities or arising out obligations of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints Seller that do not primarily arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or that do not otherwise primarily arise out of or are not otherwise primarily related to the Purchased Acquired Assets;
(v) All liabilities and obligations of Seller for costs and expenses incurred in connection with this Agreement or the consummation of the transactions contemplated by this Agreement;
(vi) All obligations for borrowed money;
(vii) All debts, liabilities and obligations of Seller to its Affiliates arising prior to the Closing Date;
(viii) Except to the extent relating to or arising out of any Assumed Liability and except as otherwise provided in clauses (x), (xi), (xii) and (xiii) of Section 1.1(d) above, all liabilities with respect to all actions, suits, proceedings, disputes, claims or investigations to the extent arising out of or relating to the ownership or operation of the Acquired Assets prior to the Closing Date;
(ix) All liabilities and obligations for any Taxes and expenses expressly retained by Seller pursuant to Article IX and Section 1.4(b);
(x) All liabilities and obligations for Environmental Matters expressly retained by Seller pursuant to Article VIII;
(xi) All liabilities and obligations for any Liability related matter covered by Occurrence-Based Business Policies with respect to any events, occurrences or arising out of matters occurring prior to the RestructuringClosing, but only if and to the extent that Seller actually receives recoveries thereunder with respect thereto;
(xii) without limiting Except to the rights and obligations extent constituting an Assumed Liability pursuant to clauses (i), (ii) or (vii) of Section 1.1(d), all liabilities for employment- related matters which relate to the conduct of the parties under Article VII, any Liability for Taxes relating Business prior to the Purchased Assets Closing or any liability with respect to any Pre-Closing Tax PeriodBusiness Benefit Plans, determined in accordance with except to the principles of extent explicitly assumed by Buyer pursuant to Section 7.0110.7; and
(xiii) any Liability arising out All costs and expenses incurred prior to the Closing Date in connection with the defense of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)▇▇▇▇▇▇▇ Litigation.
Appears in 1 contract
Excluded Liabilities. (a) Notwithstanding anything in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Purchaser shall retain or not assume, as applicable, and shall be responsible for payingdeemed not to have assumed, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates the Sellers other than the Assumed Liabilities (all such other Liabilities, the “Excluded Liabilities”):), and the Purchaser shall have no Liability therefor or in connection therewith. For the avoidance of doubt, the Excluded Liabilities shall include, but shall not be limited to, the following:
(i) those all Liabilities not relating to or arising out of Excluded Assets, including the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Agreements;
(ii) those (A) Taxes imposed with respect to the Project, the Purchased Assets or the Assumed Liabilities for any taxable period (or portion thereof) that ends on or prior to the Closing Date, (B) Taxes imposed with respect to the Excluded Assets or the Excluded Liabilities for any taxable period, (C) except for (x) Transfer Taxes imposed with respect to the transfer of the Real Property and other Purchased Assets pursuant to this Agreement, the allocation of which shall be governed by Section 7.4(a), and (y) Property Taxes for Straddle Periods, the allocation of which shall be governed by Section 7.4(c), Taxes imposed on or payable by the Sellers or any of their respective Affiliates for any taxable period, (D) any Liability of the Sellers or any of their respective Affiliates for Taxes of any other Person by reason of contract, assumption, transferee liability, operation of law, or otherwise and (E) the Nevada Sales Tax Liabilities;
(iii) all Liabilities of any Seller arising under this Agreement or any other Transaction Document;
(iv) without limiting paragraph (i) above all Liabilities arising out of, relating to, or with respect to any Seller Benefit Plan (including any Seller Benefit Plan which is an “employee pension benefit plan” (as defined in Section 3(2) of ERISA), any Employment Agreement (other than any Employment Agreement that is an Assumed Contract, if any) and any Labor Agreement;
(v) other than Liabilities arising after the Closing (A) under the Assumed Contracts transferred to and assumed by the Purchaser at the Closing or (B) related to any Transferred Employee in respect of services from and after the commencement of such Transferred Employee’s employment with the Purchaser, all Liabilities or Claims arising out of, relating to or with respect to the employment or performance of services for, or termination of employment or services for, or potential employment or engagement for the performance of services for, any Seller or any Seller’s Affiliates, or any predecessor thereof or any individual Person or any Person acting as a professional employer organization, employee leasing company or providing similar services at or prior to the Closing (including as a result of the transactions contemplated by this Agreement), including in respect of wages, other remuneration, holiday or vacation pay, bonus, severance (statutory or otherwise), separation, termination or notice pay or benefits (including under COBRA), commissions, post-employment medical or life obligations, pension contributions, insurance premiums, Taxes, Liabilities or Claims for workers’ compensation, Claims under the WARN Act, or any other form of accrued or contingent compensation (including vacation, sick days, personal days or other leave entitlements), irrespective of whether such Liabilities or Claims are paid or made, as applicable, on, before or after Closing;
(vi) all Liabilities of the Sellers with respect to any Excluded Employee with respect to any period;
(vii) except for Assumed Liabilities set forth in Section 2.6(a)(ii), any Liability
(A) of a Seller or (B) which relates to or encumbers any Purchased Assets or the Project, in each case that is owed to any Affiliate of a Seller;
(viii) any Liability of a Seller relating to the Purchased Assets or the Project related to facts or actions occurring or accruing prior to the Closing that is not expressly included among the Assumed Liabilities;
(ix) all Liabilities of the Sellers for indebtedness for borrowed money, under conditional sale or title retention agreements, capitalized lease obligations (except for any capitalized lease obligations that are or are pursuant to Assumed Leases, if any), under interest rate, currency or other hedging transactions and all guarantees and arrangements having the economic effect of a guarantee of any of the foregoing of any other Person;
(x) except for Assumed Liabilities set forth in Section 2.6(a)(iv), all Liabilities attributable to, relating to or arising from the period prior to the Closing relating to the Purchased Assets or the Project arising (i) under Environmental Laws, or (ii) from any Parent Plan Contract or other arrangement for disposal or treatment of Hazardous Substances, or for which Parent the transportation of Hazardous Substances for disposal or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities treatment, in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) each case including those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to arising from acts or arising out of product warranty obligations (express omissions occurring or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold conditions in existence prior to the Closing;
(vxi) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates the “Mechanics’ Liens” (other than accounts payable of any Transferred Subsidiary included as defined in the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiaryDIP Facility);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Seller Broker Fee; and
(xiii) any Liability arising out of a Seller not expressly included among the Assumed Liabilities or otherwise expressly assumed by Purchaser under this Agreement.
(b) From and after the Closing, the Sellers shall jointly and severally (as defined herein) indemnify, defend and hold harmless the Purchaser and the Purchaser’s Affiliates and the Representatives of the failure to advertise Purchaser and the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Purchaser’s Affiliates from and against any Claims resulting or arising from any Excluded Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything any provision in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as Buyer shall not assume and shall not be obligated to assume or be obliged to pay, perform or otherwise discharge any Liability of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicableSellers, and Sellers shall be responsible for paying, performing solely and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following exclusively liable with respect to all Liabilities of Parent or its Affiliates Sellers, other than the Assumed Liabilities (such Liabilities other than Assumed Liabilities, collectively, the “Excluded Liabilities”):), including the following Liabilities:
(ia) those all Liabilities not of Sellers relating to or otherwise arising, whether before, on or after the Closing, out of, or in connection with the Excluded Assets;
(b) other than the Liabilities described in Section 2.3(b) and except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), all Liabilities under each Assigned Contract to the extent based on facts and circumstances arising or accruing on or prior to the Closing Date;
(c) except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), any and all Liabilities relating to any environmental, health or safety matter (including any Liability or obligation under any Environmental Law), arising out of or relating to Sellers’ operation of the Business or the Purchased Assets (in the case its leasing, ownership or operation of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable real property on or prior to the Business shall be excluded hereby)Closing Date no matter when raised;
(iid) those all Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (noncompliance with Permits, Governmental Authorizations, Environmental Health and whichSafety Laws, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to Legal Requirements that occurred on or before the Closing;
(ve) all accounts payableexcept to the extent that the Liabilities are assumed pursuant to Section 2.3(d), Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable any indebtedness for borrowed money of any Transferred Subsidiary included in the calculation Seller and all guarantees of Net Working Capital third party obligations by any Seller and Indebtedness reimbursement obligations to guarantors of any Transferred Subsidiary)Seller’s obligations under letters of credit;
(vif) all intercompany payables and loans between Parent except to the extent that the Liabilities are assumed pursuant to Section 2.3(c) or any of its Affiliates (other than the Transferred SubsidiariesSection 2.3(d), all Taxes imposed (i) on the one handBusiness or the Acquired Assets that are properly attributable to any tax period (or portion thereof) ending on or before the Closing Date, and any Affiliates (ii) on Sellers regardless of Parent (other than the Transferred Subsidiaries)whether attributable to a taxable period ending prior to, on or after the other handClosing Date ;
(viig) except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), all Liabilities of any Seller to any former or current employee (Aincluding any Facility Employee), including (i) all for salary, wages, commissions, bonus, severance, vacation pay, holiday pay and any other employee payroll obligations (including accrued payroll Taxes); arising out of acts or omissions with respect to any Benefit Plan, employee practices or programs, including employee claims of wrongful discharge or discrimination, (ii) severance liabilities, (iii) obligations of Parent or its Affiliates any Seller under employment contracts, (iv) any change of control amounts payable to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to employees as a result of the transactions contemplated by this Agreement and (Bv) all Liabilities that may arise under the WARN Act as a result of the transactions contemplated in this Agreement, including all such Liabilities to any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderemployee employed by Sellers at the Facility immediately prior to the Closing;
(viiih) all except to the extent that the Liabilities relating are assumed pursuant to Section 2.3(d), drafts or checks outstanding at the Closing;
(i) except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), obligations under any confidentialityfutures contracts, non-solicitation options on futures, swap agreements or similar forward sale agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Seller; and
(xiiij) except to the extent that the Liabilities are assumed pursuant to Section 2.3, any Liability other Liabilities arising out of or in connection with events occurring prior to the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 Closing Date, regardless of the Insolvency Act (South Africa)when raised.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Purchaser shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall not assume or have be obligated to pay, perform or otherwise discharge any responsibility for, the following Liabilities liability of Parent or its Affiliates Seller not expressly assumed by Purchaser pursuant to Section 1.3 (all such liabilities and obligations not being assumed being herein called the “Excluded Liabilities”):) and, notwithstanding anything to the contrary in Section 1.3, none of the following shall be Assumed Liabilities for purposes of this Agreement or the Company Split Agreement:
(ia) those Liabilities not relating any Indebtedness of Seller (with respect to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable otherwise) incurred prior to the Business shall be excluded herebyClosing, except as set forth in Sections 1.3(a) and 1.3(e);
(iib) those Liabilities relating to related party or arising from intercompany loans, leases, customer or supplier arrangements or agreements or any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant other Contracts that relate to the Transfer Regulations (Business between Seller and whichany of its Affiliates, for the avoidance of doubtofficers, are intended to be included within the definition of Indebtedness)directors or stockholders;
(iiic) those Liabilities set forth on Section 2.02(c)(iii) any accounts payable of the Seller Disclosure Schedule;
(iv) those Liabilities relating with respect to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold or otherwise) incurred prior to the Closing;
(vd) except as set forth in Section 1.3(b), accrued compensation of the Business Employees (including accrued salary, bonuses, commissions and variable pay, but excluding accrued vacation) and all accrued Seller Benefit Plan liabilities associated with the Business Employees;
(e) all accounts payableliabilities for employee invention compensation that are (A) related to the Transferred Intellectual Property arising out of or resulting from (i) the transfer of such Transferred Intellectual Property to Purchaser at Closing or (ii) actions taken by Seller, Expenses and Indebtedness or events occurring, prior to the Closing, (B) related to Intellectual Property of Parent or its Affiliates (Seller other than accounts payable of the Transferred Intellectual Property or (C) subject to Section 1.3(h), with respect to employees other than the Business Employees;
(f) any Transferred Subsidiary included Excluded Taxes;
(g) all warranty, performance and similar obligations entered into or made prior to the Closing other than those set forth in the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiarySection 1.3(f);
(vih) all intercompany payables liabilities related to any and loans between Parent all existing or future Proceedings which arise out of events, circumstances, actions or inactions occurring or existing prior to the Closing and limited to the extent of damages arising from such events, circumstances, actions or inactions occurring or existing prior to the Closing Date;
(i) any liability under any Contract constituting part of its Affiliates the Purchased Assets which arises after the Closing Date but which arises out of or relates to any violation or breach that occurred prior to the Closing Date (other than the Transferred Subsidiariesas set forth in Section 1.3(f), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (Bj) any other fees liability arising out of or expenses for which Parent resulting from Seller’s non-compliance with any Law or its Affiliates are expressly responsible for hereunderOrder;
(viiik) any liability of Seller under this Agreement or any other Transaction Document;
(l) all Liabilities relating to any confidentialityfinancial, non-solicitation or similar agreements entered into investment banking, legal, accounting and other fees and expenses incurred by Parent or any of Seller and its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out negotiation, execution and closing of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Transactions; and
(xiiim) any Liability arising out of the failure costs, fees and expenses to advertise the transactions contemplated be borne by this Agreement by Halyard Health South Africa (PtySeller in accordance with Section 12.1(b) Ltd. under and Section 34 of the Insolvency Act (South Africa12.1(c).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) Other than the Assumed Liabilities, Buyer is not assuming any liability or Section 2.02(b) to obligation of Sellers or the contrarySelling Persons of any nature, as of the Closingwhether absolute, the Delayed Closing accrued, contingent, liquidated or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicableotherwise, and shall be responsible for paying, performing and discharging when whether due or to become due, and none of Buyer asserted or its Affiliates shall assume unasserted, known or have any responsibility forunknown (collectively, the following “Liabilities”), including, without limitation, those Liabilities of Parent or its Affiliates set forth below (collectively, the “Excluded Liabilities”):
(ia) those Liabilities not relating to or arising out in respect of any of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Assets;
(iib) those Liabilities Liabilities, including any Proceeding or other third Person claim, relating to or arising from any Parent Plan the activities or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer Business with respect to any period of time (or its Affiliates pursuant portion thereof) occurring at or prior to the Transfer Regulations (and whichClosing, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities including any Liability relating to or arising out from the classification of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of persons used in the Business sold prior as “employees” or “independent contractors;”
(c) Liabilities relating to the ClosingIndebtedness or intercompany payables of Sellers;
(vd) all accounts payable, Expenses and Indebtedness Liabilities relating to loans or payables by Sellers to the Selling Persons or other Liabilities of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in Sellers to the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Selling Persons;
(vie) all intercompany payables and loans between Parent Liabilities of Sellers or any of its Affiliates their respective direct or indirect owner(s) relating to (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(viii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent Taxes for any investment banking taxable period, whether before or brokerage fees, finders’ fees or commissions relating to after the Closing Date; (ii) Taxes arising in connection with the consummation of the transactions contemplated by this Agreement and Agreement; (Biii) unpaid Taxes of any other Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law) or as a successor or transferee by contract or otherwise; (iv) payments to any Person under any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or similar agreement with respect to Taxes; or (v) any other fees or expenses Taxes for which Parent Sellers or its Affiliates the Selling Persons are expressly responsible for hereunderunder Section 4.4 or Section 4.5;
(viiif) Liabilities related to Sellers’ or the Selling Persons’ transaction fees and expenses contemplated in Section 4.2 or otherwise;
(g) any undisclosed Liability;
(h) Liabilities incurred other than in the ordinary course of Sellers’ business, consistent with past practice;
(i) Liabilities related to any Employee Benefit Plans;
(j) Liabilities related to premiums for officer’s life insurance policies that are in place immediately prior to the Closing Date;
(k) all Liabilities for breach of warranty (whether covered by insurance or not) with respect to services rendered on or prior to the Closing Date;
(l) Liabilities relating to any confidentialitycurrent or former Staff Employee, non-solicitation Temporary Personnel or similar agreements entered into by Parent Billable Staffing Independent Contractor or current or former group of Staff Employees, Temporary Personnel or Billable Staffing Independent Contractors, including any change of its Affiliates control or its or their Representatives in connection with or severance Liabilities and any Liabilities relating to an Acquisition Proposalthe employment agreements, phantom stock agreement and shareholder agreement set forth in Schedule 2.14(e), except (i) to the extent accrued for as current Liabilities in Adjusted Net Working Capital and (ii) as set forth in Section 4.3(b);
(ixm) all Liabilities arising from or relating related to any Actions involving Parent or Real Property, except any Liabilities of its directors or officers relating Sellers specifically assumed pursuant to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Lease Assignment Agreements; and
(xiiin) any other Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)that is not an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(aBuyer shall not assume, or otherwise be responsible for, any liabilities or obligations (whether actual or contingent, matured or unmatured, liquidated or unliquidated, or known or unknown) (collectively, the "Excluded Liabilities") of Seller, any other owner or Section 2.02(b) operator of the Schools prior to the contraryClosing Date, as or any Affiliate of any of the Closingforegoing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, other than those liabilities and shall be responsible for paying, performing and discharging when due, and none of obligations which have been specifically assumed by Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “pursuant to Section 2.3. The "Excluded Liabilities”):
" shall include, without limitation, any liabilities or obligations to the extent that they relate to, are connected with, are based upon or arise out of the following: (i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared regulatory liabilities imposed by the Business and U.S. Department of Education (the Medical Device Business, only that portion of such Liabilities not attributable "DOE") and/or the applicable state regulatory agencies with respect to Seller and/or the Schools for periods prior to the Business shall be excluded hereby);
Closing Date, (ii) those Liabilities liabilities relating to or arising from any Parent Plan or employees of Seller and the Schools for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant periods prior to the Transfer Regulations Closing Date (including, without limitation, payroll taxes payable, accrued vacation liability and whichaccrued payroll), for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities liabilities with respect to accounts payable incurred on or before the Closing Date that are set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
Schedule 2.4, (iv) liabilities and ------------ costs (including those Liabilities relating to incurred post-Closing) associated with or arising out caused by a determination by the DOE that the Seller and/or Schools have not demonstrated compliance with 34 CFR 668.15 (Factors of product warranty obligations (express or impliedFinancial Responsibility) and product liability claims 34 CFR 668.16 (other than product or packaging complaints that do not arise out Standards of injury to person or property and other than product recallsAdministrative Capability) for products of the Business sold dates and periods prior to the Closing;
Closing Date, (v) all accounts payableTax liabilities of Seller or the Owners (including, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included without limitation, sales tax liabilities in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiaryconnection with this Agreement);
, (vi) all intercompany payables and loans between Parent or any of its Affiliates (other than liabilities with respect to the Transferred Subsidiaries)claims referenced on Schedule 5.14 hereto, on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) long-term debt of Seller and the Schools (Aincluding current portion) all obligations except amounts expressly assumed by Buyer pursuant to Section 2.3 of Parent this Agreement, (viii) any intercompany payables or its Affiliates debt (whether to any broker, finder of the Owners or agent for any investment banking Affiliate of Seller or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement Owners) and (Bix) any other fees liability or expenses for obligation which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating has not been specifically assumed by Buyer pursuant to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)2.3.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as contrary contained in this Agreement or any of the ClosingSchedules attached hereto, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Buyers shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall not assume or have be liable for any responsibility for, of the following Liabilities obligations or liabilities of Parent or its Affiliates Sellers (the “Excluded Liabilities”):), and Sellers shall fully pay, perform and discharge as and when they become due, all of the Excluded Liabilities:
(ia) those Liabilities not all Income Taxes for Pre-Closing Periods;
(b) except for that certain Carbon Trust Fund loan in an amount of approximately $121,000 (the “Carbon Trust Fund Loan”), all Indebtedness for borrowed money;
(c) except as otherwise provided in this Agreement, all liabilities and obligations of Sellers to the extent relating to the Retained Businesses or the Excluded Assets, including liabilities and obligations arising under the agreements listed on Schedule 1.02(j) and any and all obligations and liabilities (whether presently in existence or arising out of the Business or the Purchased Assets hereafter) with respect to any Plan (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded herebyother than any Assumed Plan);
(iid) those Liabilities relating that certain past due account payable to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities TOYO Color America LLC in respect the aggregate amount of any Continuing Employee which are assumed by operation approximately $465,000;
(e) the liabilities of Law by the Buyer or its Affiliates pursuant to Sellers and the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of IndebtednessPurchased Subsidiaries set forth on Schedule 1.03(e);
(iiif) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to any liabilities for legal, accounting, audit or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payableinvestment banking fees, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent broker commissions or any other expenses incurred by Sellers in connection with the negotiation, preparation, approval, authorization or consummation of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(xg) all liabilities and obligations of Sellers arising under this Agreement and under any Liability other agreement between Buyers and Sellers entered into in connection with this Agreement;
(h) all notes and accounts payable to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01▇. ▇▇▇▇▇▇ Inventory; and
(xiiii) any Liability arising out of all notes and accounts payable due from the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Sellers.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a2.2(a) or Section 2.02(b) in any other provision of this Agreement or any document, certificate or instrument delivered pursuant to or in connection with this Agreement to the contrary, as of the Closing(i) Buyer is not assuming or agreeing to pay or discharge, the Delayed Closing or any applicable Later Closing(ii) Seller is retaining, Parent or its Affiliates shall retain or assume, as applicable, and/or assuming and shall be responsible for paying, performing agreeing to pay and discharging discharge when due, and none of Buyer or its Affiliates (iii) the Company shall assume or not have any responsibility Liability for, in each case as appropriate, any of the following Liabilities of Parent Seller or its Affiliates (all such Liabilities being herein referred to as the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (other than as reflected in the case of those Liabilities shared by the Business and the Medical Device BusinessFinal Closing Statement, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent Seller or any of its Affiliates (other than the Transferred SubsidiariesCompany), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(xii) any Liability to the extent it relates relating to or arises out of to the extent arising under any Excluded Asset or is not primarily related the Retained Businesses, including any Tax Liability relating to the Business transfer of any Excluded Assets out of the Company or assumption of any Excluded Liabilities by Seller or its Affiliates prior to the Purchased AssetsClosing;
(xiiii) any Transaction Expenses incurred by Seller or any of its Affiliates (including the Company);
(iv) except to the extent accruing following the Closing pursuant to agreements that remain outstanding pursuant to Section 5.11, any Liability of the Company for any intercompany accounts payable to Seller or any Affiliate of Seller (including trade accounts payable), or other loan, Contract or advance by Seller or its Affiliates to the Company;
(v) any Liability related to associated with or arising out under all of UPS qualified retirement plans, including the Teamsters/UPS National 401(k) Tax Deferred Savings Plan, the UPS Pension Plan, the UPS Retirement Plan, the UPS 401(k) Savings Plan and the UPS Retired Employees Health Care Plan, except to the extent such Liability under the UPS Pension Plan or UPS Retirement Plan relates solely to assets under such plans that may be rolled over by, and at the election of, any of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined Transferred Employees in accordance with the principles applicable terms and condition of Section 7.01such plans to comparable plans of Buyer following the Closing Date;
(vi) those Liabilities that are the responsibility of Seller pursuant to Sections 5.23 and 5.24; and
(xiiivii) any Liability arising out all Liabilities for Taxes of Seller and its Affiliates (excluding the Company) and all Liabilities for Taxes of the failure Company to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 extent of the Insolvency Act (South Africaindemnification obligations set forth in Section 8.1(d).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Purchaser shall retain or not assume, as applicable, and shall be responsible for payingdeemed not to have assumed, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent the Debtors and their Affiliates or its Affiliates (the “Excluded Liabilities”):
(i) those any other Liabilities not relating related to or arising out of the Business or the Purchased Assets other than the Assumed Liabilities (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of all such Liabilities not attributable other than the Assumed Liabilities, collectively, the “Excluded Liabilities”). Debtors and their Affiliates, as applicable, shall be solely and exclusively liable for the Excluded Liabilities. Such Excluded Liabilities shall include the following:
(a) all Liabilities existing prior to the Business shall be excluded herebyPetition Date, other than priority claims assumed by Purchaser pursuant to Section 2.3(a)(x) or any claim assumed by Purchaser pursuant to Section 2.3(a)(xii);
(iib) those all Liabilities of Debtors and their Affiliates under the DIP Credit Agreement;
(c) except to the extent set forth in Sections 2.3(a)(ii), 2.3(a)(iii), 2.3(a)(iv), and 2.3(a)(v), all Liabilities of Debtors and their Affiliates to Employees including under or related to any Employee Plan including, but not limited to, any plan or arrangement providing pension benefits, bonus or incentive compensation, or any plan or arrangement providing retirement benefits or post retirement medical, life or other welfare benefits;
(d) all Liabilities relating to amounts required to be paid by Debtors and their Affiliates hereunder;
(e) all Environmental Liabilities of the Debtors and their Affiliates, including all Liabilities of Debtors and their Affiliates relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations Environmental Release (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) including all Liabilities relating to any confidentialityreal properties owned or leased or formerly owned or leased by Debtors and their Affiliates including, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixbut not limited, the formerly owned Piedmont Chemical Plant located at 4▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Piedmont, SC) all except Environmental Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect that Purchaser would have liability for under any applicable Environmental Laws solely as a result of Purchaser owning or operating the Purchased Assets after Closing;
(f) all Liabilities under or related to any Pre-the KERP Program;
(g) all Liabilities of Debtors and their Affiliates relating to Taxes accrued through or imposed on the Closing Tax PeriodDate, determined except the Liabilities for Taxes to the extent set forth in accordance Sections 2.3(a)(vii), 2.3(a)(x), 2.3(a)(xi) and 2.3(a)(xii) or Taxes otherwise expressly assumed herein;
(h) all obligations under or in connection with the principles WARN Act or any state counterpart;
(i) all intercompany Liabilities of Debtors and their Affiliates;
(j) all tort Liabilities, including all Liabilities relating to personal injury and other tort claims of any nature and related matters, of Debtors and their Affiliates, or relating to the Business or any assets or properties of Sellers;
(k) all Liabilities dischargeable in the Bankruptcy Case or of a type that would be dischargeable if a reorganization plan were confirmed under Chapter 11 of the Bankruptcy Code; (other than any such Liabilities specifically included in Assumed Liabilities pursuant to Section 7.012.3);
(l) all Liabilities arising out of or relating to Excluded Assets;
(m) all Liabilities of the Debtors and their Affiliates for legal fees and expenses, and fees and expenses of brokers, finders and financial advisors but without prejudice to the Purchaser’s obligation to pay $5 million cash at closing pursuant to Section 3.1(a)(f) hereof; and
(xiiin) any Liability arising out of all Liabilities that the failure to advertise Sale Order, and, if applicable, the transactions contemplated Confirmation Order, provides will not be assumed by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Real Estate Partners L P)
Excluded Liabilities. Notwithstanding anything Other than the Assumed Liabilities, Newco expressly does not assume any liability or obligation of B▇▇▇▇▇▇ including, but not limited to, any of the following liabilities and obligations (the "Excluded Liabilities"):
(a) any of B▇▇▇▇▇▇'▇ liabilities or obligations under this Agreement and the other agreements with Newco contemplated hereby;
(b) any liabilities or obligations of B▇▇▇▇▇▇ for expenses or fees incident to or arising out of the negotiation, preparation, approval, or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby, including without limitation, attorneys', accountants' and brokers' fees;
(c) except as specifically set forth in the schedules to Section 2.02(a) 2.3, any liability or Section 2.02(b) obligation of B▇▇▇▇▇▇ with respect to Taxes for any period or partial period occurring prior to the contraryClosing Date and any liabilities for interest, penalties or additions to any Taxes, it being understood that Newco shall not be deemed to be B▇▇▇▇▇▇'▇ transferee with respect to any Tax liability;
(d) any liabilities or obligations identified on Schedule 2.4(d);
(e) any liability or obligation of B▇▇▇▇▇▇ which relates to the Excluded Assets;
(f) any liability arising out of a breach by B▇▇▇▇▇▇ prior to the Closing Date of any Assumed Contract;
(g) any liability of B▇▇▇▇▇▇ to any Member or former Member, their former or current officers, directors, managers employees, or affiliates, of whatever nature except as expressly included in the Assumed Liabilities;
(h) any fines or penalties of governmental agencies or bodies, or relating to the ClosingOSH Act, the Delayed Closing Cal/OSHA or Environmental Law, or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):criminal liability;
(i) those Liabilities not any liability under any debt instrument or security issued by B▇▇▇▇▇▇ to any present or former Member;
(j) any liability for any penalty, default interest, or prepayment penalty under any Assumed Liabilities; and
(k) any liability relating to or arising out of the Business pending or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Businessthreatened litigation, only that portion of such Liabilities including but not attributable limited to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by litigation between B▇▇▇▇▇▇ and various Members with Red Rock Feeding Co., Inc. B▇▇▇▇▇▇ hereby acknowledges that it is retaining the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one handExcluded Liabilities, and any Affiliates of Parent (other than B▇▇▇▇▇▇ shall have the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)sole responsibility therefor.
Appears in 1 contract
Sources: Contribution Agreement (National Beef Packing Co LLC)
Excluded Liabilities. Notwithstanding It is expressly understood and agreed that, notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, as of Assumed Liabilities shall not include the Closingfollowing (collectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “"Excluded Liabilities”"):
(ia) those Liabilities not relating except to the extent expressly assumed pursuant to the provisions of Sections 1.6
(a) through 1.6(k), inclusive, all debts, liabilities or arising out obligations of the Business or Asset Sellers to the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not extent they are attributable to the Asset Sellers' business other than the Analytical Instruments Business shall be excluded hereby)as conveyed to Buyer on the Closing Date pursuant to this Agreement;
(b) all liabilities or obligations of any Asset Seller in the nature of Indebtedness, including any obligation or liability under any contract or agreement relating to the same; as used in this Agreement, "Indebtedness" of any Person means, without duplication, (i) all indebtedness of such Person for borrowed money, (ii) those Liabilities relating all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments (or reimbursement obligations with respect thereto), other than letters of credit incurred by such Person in the Ordinary Course of Business, (iii) all obligations of such Person to pay the deferred and unpaid purchase price of property or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities services, other than trade payables and accrued expenses incurred in the Ordinary Course of Business and (iv) all capitalized lease obligations of such Person;
(c) all liabilities and obligations in respect of any Continuing Employee which are employee relations and benefits not expressly assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Section 6 hereof;
(iiid) those Liabilities set forth on Section 2.02(c)(iii) of the liabilities or obligations under foreign currency contracts to which any Asset Seller Disclosure Scheduleis a party;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(ve) all accounts payableobligations with respect to intercompany receivables, Expenses and Indebtedness of Parent notes or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and Seller or any Affiliates of Parent its other subsidiaries (other than the excluding Transferred Subsidiaries), on the other hand;
(vii, except as listed in Section 1.7(e) (A) all obligations of Parent the Seller Schedule and except for trade payables or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions receivables relating to the transactions contemplated by this Agreement and (B) any other fees provision of goods or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating services to or arising out by the Analytical Instruments Business in the Ordinary Course of this Agreement or the transactions contemplated herebyBusiness;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).
Appears in 1 contract
Sources: Purchase Agreement (Pe Corp)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Purchaser shall retain or assume, as applicable, not assume and shall not be responsible liable for paying, performing and discharging when due, and none any of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities or obligations of Parent Sellers or its Affiliates relating to the Purchased Assets, regardless of the type or nature of such Liabilities or obligations (collectively, the “"Excluded Liabilities”):").
(i) those Liabilities not relating Sellers' professional fees and expenses for advisors, including without limitation, advisors retained pursuant to or arising out an order of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Bankruptcy Court;
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)Chapter 11 Expenses;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Scheduleall existing Contracts, whether written or oral, between Sellers and their respective advisors and consultants unless any such contract is a Purchased Contract;
(iv) those all change in control agreements (or similar agreements) to which any Seller is a party;
(v) all Contracts, whether written or oral, between Sellers and their respective Affiliates, unless any such Contract is a Purchased Contract;
(vi) Liabilities of Sellers to Sellers' current and former employees, officers and directors not expressly assumed under this Agreement;
(vii) all obligations, Liabilities or amounts payable to any existing equity holders of Sellers pursuant to any Contract or otherwise;
(viii) any Liabilities at obligations in respect of or relating to the Excluded Assets;
(ix) any Liability for or arising out on account of product warranty obligations any Taxes (express or impliedincluding, but not limited to, any personal property Taxes) of Sellers or, for pre-Closing Tax Periods, the Canadian Subsidiary and its Subsidiaries other than (i) Real Property Taxes to the extent set forth in Section 3.1(a)(viii) and product liability claims (ii) Taxes allocated to Purchaser to the extent set forth in Section 6.2;
(x) Liabilities or obligations in respect of Indebtedness, except for any that are Assumed Liabilities;
(xi) Liabilities and obligations, whether known or unknown, relating to any environmental, health or safety matter (including, without limitation, any Liability or obligation arising under Laws or Environmental Laws) that are not expressly assumed under this Agreement, including without limitation:
(A) any Liabilities or obligations resulting from the transport, storage, disposal, treatment, or other management of any Hazardous Substance by Sellers, any predecessors of Sellers, or any other Person in connection with the Business prior to the Closing to or at any location or facility other than product the Real Property;
(B) any Liabilities, obligations or packaging complaints that do not arise out of claims for personal injury resulting from exposure to person Hazardous Substances or property and otherwise, where such exposure or other than product recalls) for products of the Business sold event or occurrence occurred prior to the Closing;
(vC) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable any Liabilities under application of any Transferred Subsidiary included in the calculation of Net Working Capital Laws or Environmental Laws imposing successor liability, creating obligations with respect to any Excluded Assets, former property, facility or operation, or imposing joint and Indebtedness of several liability for any Transferred Subsidiary)co-mingled contamination;
(viD) all intercompany payables and loans between Parent any fines or any penalties associated with violations or alleged violations arising out of its Affiliates (other than or relating to events, conditions or circumstances occurring prior to the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handClosing;
(viiE) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderAsbestos Liabilities;
(viiiF) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the RestructuringEnvironmental Liabilities;
(xii) without limiting the rights and obligations of the parties trade payables or general unsecured claims not expressly assumed under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; andthis Agreement;
(xiii) obligations, other than Cure Costs, arising under each Reference Lease relating to leased Real Property prior to the Closing Date;
(xiv) obligations, other than Cure Costs, arising tinder each Purchased Contract prior to the Closing Date;
(xv) the Excluded Contracts;
(xvi) any Liabilities or obligations arising under or in connection with or related to any Employee Benefit Plan other than an Assumed Employee Benefit Plan, including, without limitation, any Liabilities or obligations Under Title IV of ERISA;
(xvii) any Liability arising out of the failure or obligation relating to advertise the transactions contemplated by this Agreement by Halyard Health South Africa Canadian Drawn Steel;
(Ptyxviii) Ltd. under any other Liability or obligation not expressly assumed pursuant to Section 34 of the Insolvency Act (South Africa3.1(a).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, as neither Purchaser Parent nor any Purchaser nor any other Affiliate of the Closing, the Delayed Closing or any applicable Later Closing, Purchaser Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following for any Liabilities of Parent or its Affiliates any Seller of any nature whatsoever which are not specifically included in the Assumed Liabilities (any Liabilities which are not specifically included in the Assumed Liabilities being the “Excluded Liabilities”):), including any of the following:
(ia) those Liabilities, including Liabilities arising under any Environmental Laws, with respect to any real properties that are not relating to included in the definition of Owned Real Property or Leased Real Property;
(b) Liabilities arising out of the operation of the Finishing Business on or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable prior to the Business shall be excluded hereby)Closing Date, except to the extent included as Assumed Liabilities under Section 2.3;
(c) Liabilities (including Liabilities arising under Environmental Laws) arising out of or related to (i) the operations of Eagle Industries, Inc., including but not limited to any operations at the Owned Real Property in Toledo, Ohio, and (ii) those any releases of Hazardous Materials into the Ottawa River and Maumee Bay, including but not limited to releases described in or disclosed by the Preassessment Screen for the Ottawa River and Maumee Bay dated November 3, 2004, prepared by the United States Fish and Wildlife Service/United States Department of the Interior;
(d) Liabilities arising under or relating to any Employee Benefit Plan/Schemes currently or formerly applicable to Employees engaged or employed immediately prior to Closing wholly or primarily in the United States, United Kingdom (including Liabilities under Section 75 of the UK Pensions Act of 1995), or Australia, and any other Liabilities under any Employee Benefit Plan/Scheme that are not Assumed Liabilities;
(e) any indebtedness for borrowed money of any Seller or any Liability related thereto;
(f) any Seller Transaction Expenses; and
(g) any Liabilities of any Seller relating to or arising from any Parent Plan or workers’ compensation claims for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities employees in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, United States for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold occurring prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Graco Inc)
Excluded Liabilities. Notwithstanding anything Buyer is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or any of Seller’s Subsidiaries (including the Purchased Subsidiaries) of whatever nature, whether presently in Section 2.02(aexistence or arising hereafter, including those (other than Assumed Liabilities) arising out of or Section 2.02(b) relating to the contrary, Business or the Purchased Assets (all such Liabilities not being assumed being herein referred to as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). All such Excluded Liabilities shall be retained by and remain Liabilities of Seller or the Retained Subsidiaries, as applicable. The Excluded Liabilities include the following:
(ia) those All Liabilities not to the extent relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Assets;
(iib) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)all Transaction Expenses;
(iiic) those Liabilities set forth on Section 2.02(c)(iii(i) of the Seller Disclosure Schedule;
(iv) those any Liabilities relating to or arising out of product warranty obligations any Benefit Plan that is not a Purchased Subsidiary Benefit Plan or Assumed Benefit Plan (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior except to the Closing;
(v) all accounts payableextent such Liabilities are expressly assumed by, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent transferred to, Buyer or any of its Affiliates Subsidiaries (other than including the Transferred Purchased Subsidiaries) pursuant to Article VII or which transfer pursuant to Applicable Law), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (Bii) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement the employment or termination of employment (actual or constructive) of any current or former employee of Seller or any of the transactions contemplated herebyRetained Subsidiaries to the extent such Liabilities do not relate to such individual’s employment with respect to the Business and (iii) any Liabilities specifically retained pursuant to Article VII;
(xd) any Liability to the extent it relates to or arises out of any all Excluded Asset or is not primarily related to the Business or the Purchased AssetsProduct Liabilities;
(xie) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01all Excluded Environmental Liabilities; and
(xiiif) any Liability arising out of all Liabilities for Seller Indemnified Taxes (it being understood that this clause (f) is the failure to advertise the transactions contemplated by sole clause in this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa2.4 that includes Liabilities for Taxes).
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Whirlpool Corp /De/)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as of the ClosingBuyer is not assuming and Sellers shall pay, the Delayed Closing perform, discharge or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility forotherwise satisfy, the following Liabilities of Parent liabilities and obligations, whether known or its Affiliates unknown, absolute, accrued, contingent or otherwise (the “Excluded LiabilitiesLiabilities1.1(d)" ”):
(i) those Liabilities all liability not expressly assumed by Buyer and all liability retained by Sellers pursuant to Section 4.5 arising in respect of or relating to the Employees or any Seller Benefit Plan; and
(ii) any liabilities or obligations arising out of or relating to Sellers’ ownership or operation of the Retail Store Insurance Business and the Transferred Assets prior to the Effective Time;
(iii) any liabilities or obligations relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure ScheduleExcluded Assets;
(iv) those Liabilities relating to any liabilities or arising out obligations for (i) Excluded Taxes, (ii) any Income Taxes of product warranty obligations Sellers or Affiliates of Sellers for any taxable period and (express or impliediii) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior Transfer Taxes, except to the Closingextent provided in Section 5.4;
(v) all accounts payableany liabilities or obligations of Sellers arising or incurred in connection with the negotiation, Expenses preparation, investigation and Indebtedness performance of Parent or its Affiliates (this Agreement, the other than accounts payable Ancillary Agreements and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of any Transferred Subsidiary included counsel, accountants, consultants, advisers and others, except to the extent provided in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)Section 5.4;
(vi) all intercompany payables and loans between Parent any Indebtedness of the Sellers or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handtheir Affiliates;
(vii) (A) all obligations of Parent Return Commissions and chargebacks received on or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to before the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;Closing Date; and
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights liabilities and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Sellers set forth on Section 7.01; and
(xiii1.1(d)(viii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Disclosure Schedules.
Appears in 1 contract
Sources: Asset Purchase Agreement (First Acceptance Corp /De/)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contraryBuyers do not assume, as and Buyer Parent does not assume, and will not become responsible for any of the Closingfollowing liabilities and obligations of Sellers (collectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “"Excluded Liabilities”"):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(va) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), Taxes based on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes income relating to the Purchased Assets or the operation of the Purchased Assets for periods prior to the Closing Date other than Taxes relating to the Imo Subsidiaries;
(b) all liabilities and obligations of Sellers or the Business under notes payable to banks or other indebtedness for moneys borrowed, except as expressly assumed pursuant to Section 2.3(h);
(c) all liabilities with respect to Seller Parent's Pension Plan except as expressly assumed pursuant to Section 2.3(f);
(d) all liabilities and obligations relating to the Subordinated Debt;
(e) all liabilities and obligations relating to any claims, expenses, losses, costs or indebtedness incurred by II Acquisition Corp., Seller Parent or their affiliates in connection with the acquisition of Seller Parent by II Acquisition Corp.;
(f) all liabilities and obligations of the Sellers for any division of Sellers other than the GEMS Sensors Segment or for any discontinued operations or former division or subsidiary of the Sellers, except to the extent such discontinued operation, former division or subsidiary was owned or operated by the GEMS Sensors Segment;
(g) all liabilities and obligations of Sellers relating to Seller Parent's corporate headquarters operations or any other business segment except as relates to the Transitioning Employees;
(h) all leases and other liabilities and obligations related to the operation of Sellers' sales offices to the extent not listed on Schedule 2.3 hereto;
(i) all liabilities and obligations with respect to any Pre-Closing Tax Periodcurrent employee of the Business except as expressly assumed pursuant to Article VII;
(j) all intercompany payables obligations of the Business other than those expressly assumed pursuant to Section 2.3(e);
(k) all environmental liabilities, determined in accordance known or unknown, associated with the principles facility formerly owned and occupied by the Business in Hartford, Connecticut;
(l) all liabilities and obligations of Section 7.01any Seller to any current and former officers and directors of Sellers, other than Transitioning Employees and former officers and directors of Sellers who were employees of the GEMS Sensors Segment;
(m) all liabilities and obligations of the Sellers' relating to Sellers' former ▇▇▇▇▇▇▇▇▇ and CEC businesses except for those arising from the distribution of ▇▇▇▇▇▇▇▇▇ and CEC products by the GEMS Sensors Segment;
(n) all liabilities and obligations of any Seller to any current and former shareholders of Sellers;
(o) all liabilities and obligations of Sellers, II Acquisition Corp. or any of their affiliates to Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇▇ & Co. Inc. and their affiliates; and
(xiiip) any Liability all other liabilities, obligations and commitments, known or unknown, of Sellers arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 ownership, operation or conduct of the Insolvency Act (South Africa)business of Sellers other than the Business, or the ownership, use or operation of any assets of the Sellers other than the Purchased Assets, if and to the extent such liabilities, obligations and commitments relate to the business of the Sellers other than the Business.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume or be obligated to pay, perform or otherwise discharge the following liabilities or obligations of Seller (collectively, the "Excluded Liabilities"):
(a) any liabilities or obligations of Seller that are not Assumed Liabilities, including in respect of any Excluded Assets or other assets of Seller that are not Assets;
(b) any liabilities or obligations with respect to Taxes attributable to Seller's ownership, or use of the Assets or operation of the Business for taxable periods, or portions thereof, ending before the Closing Date, except for Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof;
(c) any liabilities or obligations of Seller accruing under any of the Assigned Agreements prior to the Closing Date or any liability, other than an Assumed Liability, underlying a Permitted Encumbrance, in each case to the extent not included among the items causing an adjustment to the Base Purchase Price contemplated in Section 2.02(a3.3;
(d) without duplication of any of the liabilities and obligations relating to environmental matters addressed in Section 2.4(g) or Section 2.02(b2.4(h), which shall be the exclusive expression of all Excluded Liabilities relating to environmental matters, any and all asserted or unasserted liabilities or obligations to third parties (including employees) for injuries or damages, whether arising from tortious conduct or otherwise, or similar causes of action relating to the contraryAssets or the Business arising during or attributable to the period prior to the Closing Date, as other than such that relate to any of the ClosingAssumed Liabilities;
(e) all obligations and liabilities of Seller relating to any accrual included among the other current and accrued liabilities of Seller attributable to the Business that Seller excludes, or that Buyer requires Seller to exclude, from the Delayed adjustment to the Base Purchase Price contemplated in Section 3.3(a)(ii);
(f) any payment obligations of Seller pursuant to the Assigned Agreements accruing prior to the Closing Date, including, but not limited to, rental payments pursuant to the Real Property Leases, in each case to the extent not included among the items included in the adjustment to the Base Purchase Price contemplated in Section 3.3;
(g) subject to Section 2.3(f), all Environmental Liabilities of Seller, in each case, to the extent that such liability, responsibility, obligation, Environmental Claim or any applicable Later ClosingRemediation is attributable to or arises from an act, Parent event, occurrence or its Affiliates shall retain Environmental Condition transpiring, occurring or assumearising prior to the Closing Date, as applicableit being understood and agreed that, subject to Section 2.3(f), a liability, responsibility, obligation, Environmental Claim or Remediation attributable to or arising from an Environmental Condition or Release that commenced or occurred prior to the Closing Date and continued after the Closing Date shall be responsible for paying, performing deemed to be an Retained Liability under this Section 2.4(g) in such proportion as is reasonably allocable to the pre-Closing period taking into account all the relevant facts and discharging when due, circumstances relating thereto;
(h) any and none all asserted or unasserted liabilities or obligations of Buyer or its Affiliates shall assume or have any responsibility for, Seller with respect to the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):Iwilei Property;
(i) those Liabilities not subject to Section 6.12, any liabilities or obligations of Seller, any Seller Subsidiary or any ERISA Affiliate of Seller relating to any Benefit Plan including but not limited to any such liability (i) relating to benefits payable under any Benefit Plan; (ii) relating to the Pension Benefit Guaranty Corporation under Title IV of ERISA; (iii) relating to a multi-employer plan; (iv) with respect to non-compliance with the notice and benefit continuation requirements of COBRA; (v) with respect to any noncompliance with ERISA, the Code or any other applicable laws; or (vi) with respect to any suit, proceeding or claim which is brought against Seller, Buyer, any Benefit Plan, or any fiduciary or former fiduciary of any such Benefit Plan;
(j) subject to Section 6.12, any liabilities or obligations arising out from facts or circumstances prior to the Closing Date relating to the employment or termination of the Business employment, including discrimination, wrongful discharge, unfair labor practices, or the Purchased Assets (in the case constructive termination by Seller of those Liabilities shared by the Business and the Medical Device Businessany individual, only that portion of such Liabilities not attributable to any actions or inactions by Seller prior to the Business Closing Date other than actions or inactions taken at the written direction of Buyer (it being understood and agreed that Buyer shall be excluded herebyhave no liability for action taken by Seller pursuant to Section 6.12 except as expressly provided therein);
(iik) those Liabilities relating subject to or arising from Section 6.12, any Parent Plan or obligations of Seller for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities wages, overtime, employment taxes, severance pay, transition payments in respect of any Continuing Employee which are assumed by operation of Law by the Buyer compensation or its Affiliates pursuant similar benefits accruing or arising prior to the Transfer Regulations (and whichClosing under any term or provision of any contract, for plan, instrument or agreement relating to any of the avoidance employees of doubt, are intended to be included within the definition of Indebtedness)Seller;
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (Al) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating Seller with respect to the transactions contemplated Revenue Bonds and any other indebtedness for money borrowed by this Agreement Seller (including items due to Seller's Affiliates) other than payment obligations arising on or after the Closing Date under any equipment lease of the kind listed in Schedule 4.11(a) or under any line extension contracts or similar construction arrangements, it being understood and agreed that such leases, contracts and similar arrangements do not create indebtedness for money borrowed; and
(Bm) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into liability of Seller arising out of a breach by Parent or Seller of any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of obligations under this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Ancillary Agreements.
Appears in 1 contract
Sources: Asset Purchase Agreement (Citizens Communications Co)
Excluded Liabilities. Notwithstanding anything any other provision in Section 2.02(a) or Section 2.02(b) this Agreement to the contrary, as neither ▇▇▇▇▇▇ nor any of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates affiliates shall assume or have any responsibility forbe responsible to pay, perform or discharge the following Liabilities of Parent or its Affiliates (the “"Excluded Liabilities”"):
(a) any Liabilities of Primero arising or incurred in connection with the negotiation, preparation, investigation and performance of the Transaction Documents, including fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for: (i) those corporate income Taxes of Primero (or any affiliate of Primero); or (ii) Taxes that arise out of the Closing that are the responsibility of Primero under applicable Law, except as otherwise set forth in this Agreement;
(c) any Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Assets;
(iid) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer pending or its Affiliates pursuant to the Transfer Regulations (and whichthreatened Action arising out of, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products otherwise in respect of the Business sold acquisition, ownership or operation of the Purchased Assets to the extent such Action relates to such acquisition, ownership or operation on or prior to the Closing;
(ve) all accounts payableany Liabilities of Primero arising under or in connection with any Primero Benefit Plans;
(f) any Environmental Liabilities relating to the Purchased Assets, Expenses and Indebtedness but only to the extent arising out of Parent or its Affiliates relating to facts, circumstances or conditions existing on or prior to the Closing Time (other than accounts payable of any Transferred Subsidiary included in with respect to Reclamation obligations relating to the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiaryPurchased Assets);
(vig) all intercompany payables and loans between Parent or any Liabilities of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent Primero or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions affiliates not relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xih) any Liability related Liabilities to indemnify, reimburse or arising out advance amounts to any present or former officer, director, retiree, employee, independent contractor or consultant of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating Primero existing on or prior to the Purchased Assets Closing Time (including with respect to any Pre-breach of fiduciary obligations by any of such Persons), except for any indemnification of any Primero Indemnitees pursuant to Article 9;
(i) all Employee Obligations due or accruing due prior to the Adjustment Date that are not included in the Statement of Adjustments and all Primero Severance Obligations;
(j) any Liabilities under any Contracts: (i) which are not capable of being assigned to ▇▇▇▇▇▇ for any reason; or (ii) to the extent such Liabilities arise out of or relate to a breach by Primero of such Contracts prior to the Closing Tax PeriodTime;
(k) any fees, determined in accordance expenses or other payments incurred or owed by or on behalf of Primero or any of its affiliates to any brokers, financial advisors or comparable other Persons;
(l) any Liabilities associated with the principles debt, loans or credit facilities of Section 7.01Primero owing to any Person; and
(xiiim) any Liability Liabilities arising out of, in respect of or in connection with the failure by Primero or any of its affiliates to advertise comply with any Law, including any Environmental Law, or Governmental Order. For greater certainty, any and all Liabilities that arise after the transactions contemplated by this Agreement by Halyard Health South Africa Adjustment Date that are not set forth in the preceding clauses (Ptya) Ltd. under Section 34 through (m) shall not be Excluded Liabilities, and shall be Liabilities of ▇▇▇▇▇▇ after the Insolvency Act (South Africa)Closing Time. Primero shall, and shall cause each of its affiliates to, pay and satisfy in due course all Excluded Liabilities that Primero and its affiliates are obligated to pay and satisfy.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary contained herein, Sellers shall retain and not assign and Purchasers shall not assume any debts, obligations or liabilities of Sellers (A) not expressly assumed pursuant to Section 2.1(c) hereof or (B) expressly excluded in the schedules to this Agreement (collectively, the "Excluded Liabilities"). The Stockholders and Sellers shall continue to be obligated to pay, perform and discharge the Excluded Liabilities and shall hold Purchasers and JAKKS and their respective Affiliates harmless from such Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement or in the schedules hereto, the Excluded Liabilities shall include:
(i) To the extent not reflected on the Closing Balance Sheet or disclosed on Schedule 4.9, all current and long-term debt of Sellers existing as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or All general liability for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant Actions commencing prior to the Transfer Regulations (and which, for Effective Time that are not reflected on the avoidance Closing Balance Sheet or disclosed on Schedule 4.17 if the facts underlying the Action constitute a breach of doubt, are intended to be included within the definition of Indebtedness)a representation or warranty made under this Agreement;
(iii) those Liabilities To the extent not reflected on the Closing Balance Sheet or disclosed on Schedules 4.18(a), (b) or (c), all obligations or liabilities (including liabilities or obligations under ERISA or COBRA that may result from any inaccuracy, misrepresentation or breach of the representations and warranties contained in Section 4.18), in respect of any employee pension or benefit plan or program (including any Employee Plan), except as such obligations and liabilities pertain to the HK Assumed Contracts, the Company Plan or any other Employee Plan assumed by JAKKS US pursuant to Section 7.5(d), or any obligations or liabilities to AdvanTech as set forth on in Section 2.02(c)(iii) of the Seller Disclosure Schedule7.5(f);
(iv) those Liabilities relating to Any environmental liabilities, conditions or arising out obligations that arise from Sellers' disposal or release of product warranty obligations (express any Hazardous Materials on, at or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold underlying Sellers' Real Property prior to the ClosingEffective Time or that Sellers have knowledge of with respect to the Real Property or to Sellers' knowledge, any other real property that any Seller or any of its Affiliates directly or indirectly owns, leases or occupies or in respect of which such Person has any interest or contingent interest;
(v) To the extent not reflected on the Closing Balance Sheet or disclosed on Schedules 4.18(a), (b) or (c) or otherwise pertaining to the Assumed Contracts, all accounts payable, Expenses and Indebtedness of Parent obligations or its Affiliates (other than accounts payable liabilities in respect of any Transferred Subsidiary included employees, consultants, agents, contractors or advisors pursuant to any oral or written consulting, employment, agency, independent contractor, change in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);control, severance or similar agreement or arrangement, accrued sick leave or paid-time off obligations; and
(vi) all intercompany payables and loans between Parent To the extent not reflected on the Closing Balance Sheet or any of its Affiliates (other than the Transferred Subsidiariesotherwise disclosed on Schedule 4.11(a), on any liability for Taxes, whether or not accrued, assessed or currently due and payable, of the one handStockholders or Sellers, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent whether or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating not related to the transactions contemplated by this Agreement and (B) any other fees ownership or expenses use of the Assets for which Parent the purposes of or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentialityso accruing, non-solicitation being asserted, or similar agreements entered into by Parent becoming due in respect of or any of its Affiliates or its or their Representatives in connection with the Play Along Business, for any Tax period (or relating to an Acquisition Proposal;
(ixportion thereof) all Liabilities arising from ending on or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability prior to the extent it relates to or arises out of Closing Date, including any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out liability of the Restructuring;
(xiiStockholders or Sellers as members of an affiliated group pursuant Treasury Regulation Section 1502-6(a) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Code.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Jakks Pacific Inc)
Excluded Liabilities. Notwithstanding anything any provision in Section 2.02(a) or Section 2.02(b) this Agreement to the contrarycontrary and subject to the Specified Liabilities Cap applicable to the Specified Assumed Liabilities, as Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of the ClosingSeller of whatever nature, the Delayed Closing whether presently in existence or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and arising hereafter. All such other Liabilities shall be responsible for paying, performing retained by and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following remain Liabilities of Parent or its Affiliates (the Seller. The term “Excluded Liabilities”):
(i) those ” shall mean all Liabilities not relating to or arising out of Seller other than the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for Assumed Liabilities. For the avoidance of doubt, the Excluded Liabilities shall include (but are intended to be included within the definition of Indebtedness);
not limited to): (iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viiia) all Liabilities relating to any confidentialityadultered, non-solicitation misbranded, or similar agreements entered into otherwise defective Product (including any product part of the Specified Inventory being purchased hereunder) in the event such product was manufactured and/or sold prior to the Closing Date, except to the extent any such Liabilities are Specified Assumed Liabilities, (b) accounts payable arising prior to the Closing and due and owing by Parent or Seller to any third party, except to the extent any such accounts payable are Specified Assumed Liabilities (it being acknowledged and agreed that any accounts payable to suppliers for inventory of its Affiliates or its or their Representatives in connection with or relating the Specified Products which has been fulfilled prior to the Closing Date shall be an Acquisition Proposal;
Excluded Liability); (ixc) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability Specified Assumed Liabilities to the extent it relates to or arises out of any Excluded Asset or is not primarily related such Liabilities exceed the Specified Liabilities Cap; (d) all Liabilities associated with deductions by ▇▇▇▇▇▇▇ (other than the Specified Assumed Liabilities up to the Specified Liabilities Cap) with respect to the operation of the Specified Business or by Seller prior to the Purchased Assets;
Closing Date, (xie) subject to Section 1.7(b), any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-the operation of the Specified Business prior to the Closing Tax PeriodDate, determined in accordance with the principles of Section 7.01; and
and (xiiif) any Liability arising out of relating to an Excluded Asset (other than the failure Specified Assumed Liabilities up to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South AfricaSpecified Liabilities Cap).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as contrary in this Agreement and regardless of whether such liability or obligation is disclosed in the ClosingDisclosure Schedule or otherwise, the Delayed Closing Company has not assumed any liability or obligation of any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent ▇▇▇▇▇▇▇ Party or its Affiliates (excluding the JV Entity and its subsidiaries) pursuant to the ▇▇▇▇▇▇▇ Asset Assignment Agreement other than the Assumed Liabilities. Notwithstanding anything to the contrary provided in Section 2.3(a), the Assumed Liabilities shall not include (x) any liability or obligation of any ▇▇▇▇▇▇▇ Party or their respective Affiliates (excluding the JV Entity and its subsidiaries) with respect to the Business for any period prior to the Closing (other than Assumed Liabilities described in Section 2.3(a)(ii)), (y) any Debt of the JV Entity or its subsidiaries as of immediately prior to the Closing or (z) the following liabilities and obligations of ▇▇▇▇▇▇▇ and its Affiliates (excluding the JV Entity and its subsidiaries) all of which shall constitute Excluded Liabilities (all such liabilities described in clauses (x), (y) and (z), collectively, the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out Any Debt existing as of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold immediately prior to the Closing;
(vii) all accounts payable, Expenses and Indebtedness Any liability or obligation with respect to Taxes for which ▇▇▇▇▇▇▇ is liable under Section 9.2;
(iii) Any liability or obligation of Parent ▇▇▇▇▇▇▇ or its Affiliates (other than accounts payable excluding the JV Entity and its subsidiaries) under this Agreement or under any ▇▇▇▇▇▇▇ Ancillary Agreement;
(iv) All liabilities relating to the termination of any Transferred Subsidiary included persons employed in the calculation conduct of Net Working Capital and Indebtedness the Business, or dependents of such persons, prior to the Closing Date, except as provided in Section 2.3(a)(iv) or Section 9.3;
(v) All liabilities relating to any Transferred Subsidiary)Business Plan, except as provided in Section 9.3;
(vi) all All intercompany payables and loans between Parent accounts among the ▇▇▇▇▇▇▇ Parties or any their respective Affiliates relating to the Business, which are the subject of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handSection 8.2;
(vii) All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants (provided, however, that nothing in this Section 2.3(b)(vii) shall limit the obligations of the JV Entity under Section 9.6); and
(viii) Any tax, penalty or fee imposed by the Affordable Care Act (Pub. L. 111-148 and Pub. L. 111-152), as amended, that relates to any period prior to the Closing. For purposes of the indemnification rights set forth in Section 12.1(a)(iv) only, “Excluded Liabilities” shall also include all liabilities and obligations of the Business to the extent arising out of or relating to the operation of the Business after the Contribution Effective Time and prior to the Closing, (I) including any liability or obligation of the Business of the nature described in clause (iii), (iv), (v), (vi) or (vii) of Section 2.3(a), in each case to the extent arising after the Contribution Effective Time and prior to the Closing, but (II) excluding any liability or obligation of the Business of the nature described in clause (i) (excluding (A) all obligations of Parent any such liability or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions obligation relating to or arising from any breach prior to the transactions contemplated Closing by this Agreement any ▇▇▇▇▇▇▇ Party or the Company of any of their respective liabilities or obligations under the applicable Transferred Contract, Purchase Order or Shared Contract and (B) any other fees liabilities or expenses for which Parent obligations that are the responsibility of ▇▇▇▇▇▇▇ under the Transition Services Agreement) or its Affiliates are expressly responsible for hereunder;
clause (viiiii) all Liabilities relating to any confidentialityof Section 2.3(a), non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability each case to the extent it relates to or arises out of any Excluded Asset or is not primarily related arising after the Contribution Effective Time and prior to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Closing.
Appears in 1 contract
Sources: Contribution and Investment Agreement (Allscripts Healthcare Solutions, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, Buyer is assuming only the Assumed Liabilities specified in Section 2.02(a) 2.3(a), and Buyer is not assuming any liabilities or Section 2.02(b) obligations related to, resulting from or arising out of the ownership, use of the Purchased Assets or operation of the Business prior to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent other liabilities or obligations of the Seller or any of its Affiliates shall retain or assumeother than the Assumed Liabilities (collectively, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):), including by way of example only, the following liabilities and obligations:
(i) those Liabilities not relating to or arising out all liabilities and obligations in respect of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)Excluded Taxes;
(ii) those Liabilities all liabilities and obligations relating to to, resulting from or arising from any Parent Plan out of or for which Parent or under (A) the Benefit Plans (other than those liabilities and obligations that are expressly assumed by Buyer and its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect under Section 5.3), (B) Section 302 or Title IV of ERISA or Section 412 of the Code, (C) any Continuing Employee which are assumed by operation Multiemployer Plan, or (D) a violation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness)COBRA;
(iii) those Liabilities set forth on Section 2.02(c)(iiiall liabilities and obligations with respect to (A) each Transferred Employee arising, resulting from or relating to any period prior to the date of Closing, or (B) any Seller Service Providers of the Seller Disclosure Scheduleor any of its Affiliates who is not or does not become a Transferred Employee arising, resulting from or relating to any period prior to the date of Closing;
(iv) those Liabilities relating to or all liabilities and obligations arising out of, under or in connection with Contracts that are not Acquired Contracts and, with respect to the Acquired Contracts, liabilities and obligations in respect of product warranty obligations (express a breach by or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products default of the Business sold Seller or any of its Affiliates arising under such Contracts in respect of any period prior to the ClosingClosing or the applicable Loan Transfer Date;
(v) all accounts payableliabilities and obligations to the extent relating to, Expenses resulting from or arising out of (A) the Seller’s breach of Contract or violation of applicable Law (including Environmental Law and Indebtedness Environmental Permits) prior to the Closing or the applicable Loan Transfer Date or (B) the Seller’s acts or omissions prior to the Closing or the applicable Loan Transfer Date to the extent such acts or omissions directly give rise to remedies under Contracts to which the Seller was or is a party prior to or as of Parent the Closing or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary)applicable Loan Transfer Date;
(vi) all intercompany payables repurchase or indemnification obligations set forth in the Contracts in respect of the In-Process Mortgage Loans that exist as of the applicable Loan Transfer Date and loans between Parent arise from actions or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other handomissions prior to such applicable Loan Transfer Date;
(vii) (A) all liabilities or obligations related to the matters listed on Schedule 3.3 of Parent the Seller Disclosure Schedules or any other Proceedings pertaining to or affecting the Business, the Purchased Assets, the Seller or its Affiliates to any brokerAffiliates, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees extent based on a cause of action arising prior to the Closing Date or expenses for which Parent the applicable Loan Transfer Date, whether the commencement of such Proceeding is before or its Affiliates are expressly responsible for hereunderafter such date;
(viii) all Liabilities liabilities or obligations arising out of or relating to any confidentialityreal property owned, non-solicitation leased, occupied or similar agreements entered into controlled by Parent or any Seller which is not set forth on Schedule 2.1(a)(ii) of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposalthe Seller Disclosure Schedules;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;Seller’s SEC Investigation; and
(x) any Liability all liabilities and obligations to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to to, resulting from or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Excluded Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Banc of California, Inc.)
Excluded Liabilities. Notwithstanding anything in Section 2.02(aSeller shall remain responsible for all liabilities and obligations not expressly assumed by Buyer (collectively, the "EXCLUDED LIABILITIES"), including but not limited to the following:
(1) All obligations pursuant to or related to any bonds ("BONDS") or Section 2.02(blong term debt obligations ("LOANS"), including any obligations or liabilities with respect to any bonds heretofore defeased or otherwise attempted to be defeased or satisfied pursuant to a refunding, restructuring or refinancing of said bonds;
(2) All amounts payable under the Medicare and Medicaid Programs applicable to the contrary, as of cost reports filed for services rendered through the Closing, including any amount payable if any gain related to this transaction is deemed to have occurred;
(3) Obligations or liabilities to any donor with respect to any and all gifts, devises, bequests or donations in any way related to the Delayed Closing Hospital or the Assets;
(4) Liabilities, indebtedness, commitments or obligations and responsibilities of any applicable Later kind whatsoever (other than the Assumed Liabilities) of Seller arising from operations of the Hospital (including malpractice claims or suits and scheduled or unscheduled liabilities of any kind whatsoever) relating to the time through Closing, Parent or its Affiliates shall retain from the operations or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none existence of Buyer any trust or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):foundation;
(i5) those Liabilities not relating or obligations with respect to the ownership or arising out operation of the Business Excluded Assets and any assets owned or operated by Seller other than the Purchased Assets Assets;
(6) Any liabilities or obligations with respect to any Employee Plans (as defined in the case of those Liabilities shared by the Business Section 4.32) and the Medical Device Businessany contribution, only that portion of such Liabilities not attributable to the Business shall be excluded herebysettlor or fiduciary liability therefor, excluding obligations assumed under Section 1.3(2);
(ii7) those Liabilities All liabilities and commitments relating to the time periods through Closing for all of the following: any and all investment tax credit recapture; all impositions of income tax and other taxes; Hill-▇▇▇▇▇▇ ▇▇▇bilities, violation or arising from any Parent Plan or for which Parent or its Affiliates are responsible liabilities under environmental laws; except pursuant to Article VI but excluding Employment Related Liabilities Section 1.3(2), all employee (and former employee) wages, salaries and benefits including any and all liabilities with respect to medical benefits for active and retired employees, and all obligations to give notice of and to provide continuation health care coverage for employees, retirees, former employees, and their dependents or any qualified beneficiary of such employees or retirees in respect accordance with the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, the Public Health Service Act, as amended (the "PHSA"), or any Continuing Employee which are assumed applicable state law requiring continuing health coverage (hereinafter referred to as "CONTINUATION COVERAGE"), including, without limitation, all liabilities, taxes, sanctions, interest and penalties imposed upon, incurred by operation of Law by the or assessed against Buyer or its Affiliates pursuant to the Transfer Regulations any affiliated entity within a controlled group relationship with Buyer (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on as determined under Section 2.02(c)(iii) 414 of the Seller Disclosure Schedule;
Internal Revenue Code of 1986, as amended) (iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary"CODE");
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries)their employees, on the other hand;
(vii) (A) all obligations arising by reason of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating failure to or arising out of this Agreement or provide the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01continuation coverage; and
(xiii) 8) Amounts owed by Seller to any Liability arising out third party payors, including Medicare and Medicaid, for the periods through Closing as a result of the failure any settlement process used by such third party payors, including cost reports filed or to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)be filed.
Appears in 1 contract
Sources: Lease and Purchase Agreement (New American Healthcare Corp)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to Neither the contrary, as Buyer nor any of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Buyer’s Affiliates shall retain or assume, as applicablebe a successor with respect to, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall not assume or have any responsibility agree to pay, perform or otherwise discharge, nor shall they be or become responsible hereunder for, any of the following Liabilities of Parent the Company or its Affiliates Subsidiaries (including the Sold Companies and the Sold Subsidiaries) (such Liabilities, other than those constituting Assumed Liabilities, the “Excluded Liabilities”):
(ia) those all Liabilities not to the extent resulting from, arising out of, or relating to the Excluded Businesses or arising out of the Business or the Purchased any Excluded Assets (in the case of those it being understood that this Section 2.5(a) shall not include Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law incurred by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of transactions between the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent Buyer or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries)Affiliates, on the one hand, and the Company or any Affiliates of Parent its Subsidiaries, on the other, following the Closing Date);
(b) all Liabilities of the Company or any of its Subsidiaries or any member of any consolidated, affiliated, combined or unitary group of which any Asset Seller is or has been a member (other than the Transferred Sold Companies or Sold Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating attributable to the Purchased Assets with respect to any all Pre-Closing Tax Period, determined Periods and Pre-Closing Straddle Periods (such Taxes relating to such Straddle Period to be apportioned in accordance with the principles of Section 7.0110.4(c)), including any such Taxes which are not due or assessed until after the Closing Date;
(c) all Liabilities of the Asset Sellers for Taxes to the extent resulting from, arising out of, or relating to the operation of the Business or the ownership of the Transferred Assets or the Assumed Liabilities to the extent attributable to a Pre-Closing Tax Period or Pre-Closing Straddle Period (such Taxes relating to such Straddle Period to be apportioned in accordance with the principles of Section 10.4(c)), including any such Taxes which are not due or assessed until after the Closing Date;
(d) all Transfer Taxes for which the Company is responsible pursuant to Section 10.4(d);
(e) all Liabilities to the extent resulting from, arising out of, or relating to any of the employees (other than Transferred Employees or Former Employees) and other individual service providers of the Company or any of its Subsidiaries;
(f) all Liabilities to the extent resulting from, arising out of, or relating to (i) Benefit Plans (other than Assumed Plans, the Multiemployer Plans or such Liabilities specifically assumed by the Buyer under Article VI), and (ii) Transferred Employees or Former Employees to the extent specifically retained by the Sellers under Article VI;
(g) all Liabilities for which the Sellers are expressly made responsible pursuant to this Agreement or any other Transaction Document;
(h) all Transaction Expenses;
(i) all Indebtedness for borrowed money of the Asset Sellers to the extent not included in Closing Indebtedness;
(j) all Liabilities to the extent resulting from, arising out of, or relating to the Carve-Out Accounts;
(k) all Environmental Liabilities to the extent resulting from, arising out of, or relating to any site other than the Assigned Leased Real Properties, where the Company and/or any of its Subsidiaries have, as of the Closing Date, been identified as a potentially responsible party or otherwise alleged to be liable with respect to any environmental conditions, including the sixty-one (61) sites disclosed in the Company’s Form 10-K filed for the fiscal year ended July 1, 2016; and
(xiiil) any Liability all Liabilities to the extent resulting from, arising out of of, or relating to the failure Honduras Wind-down (including with respect to advertise Taxes required to be paid by or with respect to ▇▇▇▇▇▇ Communications S.A. de C.V.), whether arising prior to, on or after the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Closing Date.
Appears in 1 contract
Sources: Sale Agreement (Harris Corp /De/)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Purchaser shall retain or not assume, as applicable, and shall be responsible for payingdeemed not to have assumed, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent the Debtors and their Affiliates or its Affiliates (the “Excluded Liabilities”):
(i) those any other Liabilities not relating related to or arising out of the Business or the Purchased Assets other than the Assumed Liabilities (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of all such Liabilities not attributable other than the Assumed Liabilities, collectively, the “Excluded Liabilities”). Debtors and their Affiliates, as applicable, shall be solely and exclusively liable for the Excluded Liabilities. Such Excluded Liabilities shall include the following:
(a) all Liabilities existing prior to the Business shall be excluded herebyPetition Date, other than priority claims assumed by Purchaser pursuant to Section 2.3(a)(x) or any claim assumed by Purchaser pursuant to Section 2.3(a)(xii);
(iib) those all Liabilities of Debtors and their Affiliates under the DIP Credit Agreement;
(c) except to the extent set forth in Sections 2.3(a)(ii), 2.3(a)(iii), 2.3(a)(iv), and 2.3(a)(v), all Liabilities of Debtors and their Affiliates to Employees including under or related to any Employee Plan including, but not limited to, any plan or arrangement providing pension benefits, bonus or incentive compensation, or any plan or arrangement providing retirement benefits or post retirement medical, life or other welfare benefits;
(d) all Liabilities relating to amounts required to be paid by ▇▇▇▇▇▇▇ and their Affiliates hereunder;
(e) all Environmental Liabilities of the Debtors and their Affiliates, including all Liabilities of Debtors and their Affiliates relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations Environmental Release (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) including all Liabilities relating to any confidentialityreal properties owned or leased or formerly owned or leased by Debtors and their Affiliates including, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixbut not limited, the formerly owned Piedmont Chemical Plant located at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Piedmont, SC) all except Environmental Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect that Purchaser would have liability for under any applicable Environmental Laws solely as a result of Purchaser owning or operating the Purchased Assets after Closing;
(f) all Liabilities under or related to any Pre-the KERP Program;
(g) all Liabilities of Debtors and their Affiliates relating to Taxes accrued through or imposed on the Closing Tax PeriodDate, determined except the Liabilities for Taxes to the extent set forth in accordance Sections 2.3(a)(vii), 2.3(a)(x), 2.3(a)(xi) and 2.3(a)(xii) or Taxes otherwise expressly assumed herein; counterpart;
(h) all obligations under or in connection with the principles WARN Act or any state
(i) all intercompany Liabilities of Debtors and their Affiliates;
(j) all tort Liabilities, including all Liabilities relating to personal injury and other tort claims of any nature and related matters, of Debtors and their Affiliates, or relating to the Business or any assets or properties of Sellers;
(k) all Liabilities dischargeable in the Bankruptcy Case or of a type that would be dischargeable if a reorganization plan were confirmed under Chapter 11 of the Bankruptcy Code; (other than any such Liabilities specifically included in Assumed Liabilities pursuant to Section 7.012.3);
(l) all Liabilities arising out of or relating to Excluded Assets;
(m) all Liabilities of the Debtors and their Affiliates for legal fees and expenses, and fees and expenses of brokers, finders and financial advisors but without prejudice to the Purchaser’s obligation to pay $5 million cash at closing pursuant to Section 3.1(a)(f) hereof; and
(xiiin) any Liability arising out of all Liabilities that the failure to advertise Sale Order, and, if applicable, the transactions contemplated Confirmation Order, provides will not be assumed by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates nothing in this Agreement shall retain or assume, as applicablebe construed to impose on Buyer, and Buyer shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall not assume or have any responsibility forbe obligated to pay, perform or otherwise discharge, the following Liabilities of Parent or its Affiliates Seller (the “Excluded Liabilities”):), with all of such Excluded Liabilities remaining as obligations of Seller or an Affiliate of Seller, as applicable:
2.4.1. All Excluded Environmental Liabilities;
2.4.2. All Spent Nuclear Fuel Fees and all Liabilities under the Standard Spent Fuel Disposal Contract;
2.4.3. All Liabilities associated with the sale of electricity generated at the Zion Station and sold on or prior to the Closing Date;
2.4.4. All Liabilities, except for the performance of Decommissioning, related to the Switchyard;
2.4.5. All Liabilities related to the New VAR Facility after completion of all required Decommissioning and other required work related to that portion of the Zion Station Site;
2.4.6. All Liabilities, except for Decommissioning and other required work, relating to any other mutually agreed-upon improvements retained by Seller;
2.4.7. All Liabilities related to Spent Nuclear Fuel and the ISFSI Island after the earlier of (i) those the transfer off site of the Spent Nuclear Fuel or (ii) the Put Option Closing, and all Liabilities not relating to or arising out the ultimate disposition of Spent Nuclear Fuel in the ISFSI Island and the Decommissioning of the Business ISFSI Island;
2.4.8. All Liabilities, if any, for the regulatory, contractual and financial responsibility for transferring Spent Nuclear Fuel to another site;
2.4.9. All potential refund obligations of ComEd or Seller to ComEd customers for QDF or NDF funds withdrawn for costs and expenses incurred by Seller and/or its Affiliates before the Purchased Assets Closing Date, other than for costs and expenses paid to Buyer or Buyer’s Parent or their Affiliates or contractors (in the case of those Liabilities shared by the Business including refund obligations arising if such costs and the Medical Device Business, only that portion of such Liabilities expenses are determined to not attributable have been prudently incurred or otherwise to the Business shall be excluded herebyinappropriate);
(ii) those 2.4.10. All Liabilities relating to the Zion Assets or the Zion Station Site arising from after the earlier of the Put Option Closing or the termination of the NRC Licenses after completion of Decommissioning, other than Liabilities attributable to any Parent Plan act or for which omission by Buyer or Buyer’s Parent or their Affiliates or their respective its Affiliates are responsible pursuant contractors in the performance of work required to Article VI but excluding Employment Related achieve End-State Conditions;
2.4.11. Any Liabilities in respect of any Continuing Employee Excluded Assets or other assets of Seller which are assumed by operation of Law by the Buyer or its Affiliates pursuant not Zion Assets;
2.4.12. Any Liabilities for Taxes attributable to the Transfer Regulations (and whichownership, for the avoidance of doubtsale, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) possession, operation, maintenance or use of the Zion Assets or the Zion Station Site (including any withholding Taxes imposed on Seller Disclosure Schedule;
(iv) those Liabilities relating with respect to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recallsthe Transferred Employees) for products of taxable periods, or portions thereof, ending before the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one handClosing Date, and any Affiliates of Parent (other than the Transferred Subsidiaries), Income Taxes imposed on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to Seller arising from the transactions contemplated by this Agreement and (B) any other fees or expenses Agreement, except for Taxes for which Parent Buyer is liable pursuant to Section 3.3 or 6.9 and Taxes for which Buyer is responsible under the Lease Agreement;
2.4.13. Any Liabilities arising under or attributed to performance, or failure of performance, by Seller under any of Seller’s Agreements, Real Property Agreements, Transferable Permits or any of the Non-material Contracts prior to the Closing Date;
2.4.14. Any Liabilities for any monetary fines or penalties imposed by a Governmental Authority with respect to the Zion Assets to the extent attributed to the period prior to the Closing Date;
2.4.15. Any Liabilities resulting from any knowing and intentional illegal acts or willful misconduct of Seller or its Affiliates are expressly responsible for hereunderemployees, agents or contractors occurring prior to the Closing Date;
(viii) all 2.4.16. Any Liabilities arising prior to the Closing Date relating to Seller’s operations on, or usage of, the Easements, including Liabilities arising as a result of or in connection with loss of life, injury to persons or property or damage to natural resources, other than Environmental Liabilities included in the Assumed Liabilities;
2.4.17. Any Liabilities relating to any confidentialityemployee benefit plan as defined in Section 3(3) of ERISA, non-solicitation or similar agreements entered into by Parent or any other plan, program, arrangement or policy established or maintained in whole or in part by Seller or by any trade or business (whether or not incorporated) which is or ever has been under common control, or which is or ever has been treated as a single employer, with Seller under Section 414(b), (c), (m) or (o) of its Affiliates the Code (“ERISA Affiliate”) or its to which Seller; or their Representatives in connection any ERISA Affiliate contributes or contributed, including any multiemployer plan contributed to by Seller, or any ERISA Affiliate or to which Seller, or any ERISA Affiliate is or was obligated to contribute (the “Plans”), including any such Liability of Seller (i) for the termination or discontinuance of, or Seller’s, or an ERISA Affiliate’s withdrawal from, any such Plan, (ii) relating to benefits payable under any Plans, (iii) relating to the PBGC under Title IV of ERISA, (iv) relating to a multi-employer plan, (v) with respect to noncompliance with the notice requirements of COBRA, (vi) with respect to any noncompliance with ERISA or any other applicable Laws, and (vii) with respect to any suit, proceeding or claim which is brought against Buyer, any Plan or any fiduciary or former fiduciary of, any of the Plans;
2.4.18. Any Liabilities relating to the failure to hire, the employment or services or termination of employment or services of any individual, including wages, compensation, benefits, affirmative action, personal injury, discrimination, harassment, retaliation, wrongful discharge, unfair labor practices, or constructive termination of any individual, or any similar or related claim or cause of action attributable to any actions or inactions prior to the Closing Date with respect to the Zion Assets, the Transferred Employees, the Zion Employees, independent contractors, applicants, and any other individuals who are determined by a court or by a Governmental Authority to have been applicants or employees of Seller or any Affiliate of Seller, or that are filed with or relating pending before any court, administrative agency or arbitrator prior to an Acquisition Proposalthe Closing Date;
(ix) all 2.4.19. Except as otherwise expressly provided herein, any Liabilities of Seller to the extent arising from the execution, delivery or relating to any Actions involving Parent or any of its directors or officers relating to or arising out performance of this Agreement or and the transactions contemplated hereby;
2.4.20. Except as otherwise provided herein, any Taxes incurred by the NDF or the QDF for taxable periods, or portions thereof, ending on or prior to the Closing Date;
2.4.21. All Liabilities arising as a result of or in connection with the disposal, storage or transportation of Nuclear Materials off-site prior to the Closing Date in connection with the ownership or possession of the Facilities;
2.4.22. All Liabilities for Department of Energy Decommissioning and Decontamination Fees relating to the Facilities and the Zion Station Site arising and incurred on, before or after the Closing Date, including the Liabilities described in Section 6.14;
2.4.23. Any Liability for a Third Party Claim against or relating to Seller, the Zion Assets or the Zion Station Site for personal injury, death or property damage (xexcept for personal injury, death or property damage relating to Liabilities arising by reason of acts or omissions in connection with work performed under the Decommissioning Planning Contract) any Liability suffered by such third party arising from or relating to the use, ownership or lease of the Zion Assets or the Zion Station Site prior to the Closing Date;
2.4.24. All other Liabilities expressly allocated to or retained by Seller in this Agreement; or the Ancillary Agreements; and
2.4.25. All other Liabilities relating to the Zion Assets, the Facilities or the Zion Station Site, except to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)that such Liabilities constitute Assumed Liabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Buyer is only assuming the Assumed Liabilities from Seller and the Retained Subsidiaries and is not assuming any other Liability of Seller or any of its Retained Subsidiaries of whatever nature, whether presently in Section 2.02(a) existence or Section 2.02(b) to the contraryarising hereafter. All such other Liabilities shall be retained by and remain Liabilities of Seller or its Retained Subsidiaries, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, (all such Liabilities not being assumed being herein referred to as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):), including but not limited to the following:
(ia) those all Liabilities not to the extent arising out of or relating to the operation or conduct by Seller or any of its Retained Subsidiaries of the Retained Businesses, whether arising prior to, on or after the Closing Date (including, subject to Buyer’s obligations under Section 5.05, any Liabilities under any Shared Contracts);
(b) all Liabilities to the extent arising out of or relating to any Excluded Asset, whether arising prior to, on or after the Closing Date;
(c) all Liabilities relating to the Transferred Employees (other than those expressly assumed by Buyer pursuant to Section 2.04(e) or (g)) and Employee Plans (other than those expressly assumed by Buyer pursuant to Section 2.04(e) or (g)), all Liabilities relating to the Forms I-9 maintained by Seller and its Subsidiaries with respect to Business Employees arising on or prior to the Transfer Time, and all other Liabilities relating to all employee benefit or compensation plans (other than the Employee Plans) that are or have been sponsored, maintained or contributed to by Seller or any of Seller’s ERISA Affiliates;
(d) all Liabilities arising out of the Business or the Purchased Assets (in the case employment of those Liabilities shared by the Business Employees by Seller and the Medical Device Business, only that portion of such Liabilities not attributable its Affiliates prior to the Business shall be excluded herebyTransfer Time, other than those that are expressly assumed by Buyer pursuant to Section 2.04(e) and (g);
(ii) those , and all Liabilities relating to employees or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by service providers other than the Buyer or its Affiliates pursuant to the Transfer Regulations (and whichBusiness Employees, including, for the avoidance of doubt, are intended all employment-related Liabilities (including severance costs) relating to be included within the definition pre-Closing restructuring or closing of Indebtedness)any Restaurants;
(iiie) those Liabilities except as set forth on Schedule 2.05(e), all Liabilities for (1) any sale, change-of-control, retention, stay or similar bonus or payment, or, (2) subject to Buyer’s compliance in all material respects with all of its obligations under Section 2.02(c)(iii7.01 and Section 7.02 with respect to the applicable Business Employee, any severance amount, in each case the payment of which is triggered by the transactions contemplated by this Agreement (including (i) payments that are conditioned on a Business Employee’s continued employment with Buyer following the Closing Date and (ii) payments that are triggered by the resignation of a Business Employee as a result of changes to the terms and conditions of such Business Employee’s employment effected in connection with Buyer’s hiring or employment of Transferred Employees in connection with any of the Seller Disclosure Schedule;
transactions contemplated by this Agreement (iv) those Liabilities relating including that such Persons will no longer be employed by a publicly-held company and will no longer have duties, budgetary or other authority and responsibilities with respect to multiple business segments or arising out of product warranty obligations (express or implieddivisions) and product liability claims (other than product including the employer portion of payroll Taxes thereon), in each case if such Liability is pursuant to an Employee Plan or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent a Contract entered into by Seller or any of its Affiliates (other than prior to the Transferred Subsidiaries)Closing Date, on provided that, for the one handavoidance of doubt, and the Liabilities described in this Section 2.05(e) do not include any Affiliates Liabilities assumed by Buyer under Section 7.02(f) of Parent (other than the Transferred Subsidiaries)this Agreement, on the other handwhich are Assumed Liabilities;
(viif) all Liabilities for severance amounts paid, payable or otherwise owing to any employee of Seller or any of its Affiliates that does not become a Transferred Employee;
(g) except as set forth in Section 2.04(c), all of Seller’s or the Retained Subsidiaries’ liabilities or obligations for Indebtedness, including (i) Indebtedness related to the existing mortgage debt at the headquarters facility (the “Headquarters Debt”) and (ii) any Indebtedness arising under any capitalized lease constituting an Assumed Contract;
(h) (Ai) all obligations of Parent or Seller and its Affiliates for its portion of Transfer Taxes under Section 6.01, (ii) the portion of any Non-Assumed Property Taxes allocated to Seller or the Retained Subsidiaries under Section 6.02, (iii) all Taxes of Seller or the Retained Subsidiaries (including Taxes related to or arising from the Business or the Purchased Assets for any Pre-Closing Tax Period) other than (1) any Taxes arising from or relating to Buyer’s use of the Purchased Assets or conduct of the Business in any Post-Closing Tax Period and (2) any Taxes that are expressly assumed by Buyer pursuant to Section 2.04(d), (iv) any Taxes of Seller or the Retained Subsidiaries under Section 1.1502-6 of the United States Treasury Regulations (or any similar provision of state, local or foreign Law) or otherwise by reason of such entity being included in any consolidated, affiliated, combined or unitary group at any time on or before the Closing Date, and (iv) any Income Taxes of Seller or the Retained Subsidiaries;
(i) all obligations to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or and expenses for which Parent or its Affiliates are expressly Seller is responsible for hereunderpursuant to Section 11.03;
(viiij) all Liabilities to the extent relating to to, arising out of or resulting from Seller’s gift card program or any confidentialitygift certificates, non-solicitation coupons or similar agreements entered into promotions of or owned by Parent Seller or any of its Affiliates Affiliates, except to the extent set forth in Section 2.04(c) (for the avoidance of doubt, all obligations to any Governmental Authority or its Taxing Authority or their Representatives other Person under escheatment, unclaimed or abandoned property or similar Laws shall be Excluded Liabilities);
(k) except as set forth in Section 2.04(e), all Liabilities arising out of any and all Actions (including those listed on Schedule 2.05(k)), except for the costs of compliance with any equitable remedies resulting from such Actions, including the costs of compliance with any prospective injunctive relief or the associated need to change the relevant business practices on a going forward basis to the extent such remedies have been consented to by Buyer (such consent not to be unreasonably withheld, conditioned or delayed);
(l) all unpaid amounts of any checks and wires related to the Business that are outstanding as of the close of business on the day immediately preceding the Closing Date, except to the extent set forth in Section 2.04(j);
(m) all Environmental Liabilities arising at, prior to or after the Closing in connection with or relating to an Acquisition Proposal;
(ixi) all Liabilities arising from properties currently or relating to any Actions involving Parent formerly owned, leased or any of operated, including by Seller or its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to Subsidiaries, in connection with the Business or the Purchased Assets, other than the Business Real Property, or (ii) the handling, treatment, storage, release, disposal or arrangement for the disposal of any Hazardous Substances to or at any property other than the Business Real Property;
(xin) all Liabilities agreed to be performed by Seller or any Liability related of the Retained Subsidiaries pursuant to the terms of this Agreement or any of the other Transaction Documents;
(o) all Liabilities arising out of or in connection with any real property other than the RestructuringBusiness Real Property;
(xiip) without limiting except to the rights and obligations extent expressly allocated among the parties in a different manner pursuant to this Agreement or any of the parties under Article VIIother Transaction Documents, any Liability for Taxes relating all costs, fees and expenses incurred or to the Purchased Assets be incurred by Seller or its Affiliates in connection with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 and the other Transaction Documents, including those associated with the separation of the Insolvency Act Business from the Retained Businesses and with the sale, conveyance, transfer, assignment and delivery to Buyer of the Purchased Assets and Assumed Liabilities, as well as the fees, costs and expenses of counsel, accountants and financial advisors;
(South Africaq) all intercompany balances between and among Seller and any of its Subsidiaries with respect to the Business and all intercompany transactions and accounts; and (r) those Liabilities listed on Schedule 2.05(r).
Appears in 1 contract
Sources: Asset and Membership Interest Purchase Agreement (Bob Evans Farms Inc)
Excluded Liabilities. Notwithstanding anything Section 2.3, Buyer shall not assume or be obligated to pay, perform or otherwise discharge the following Liabilities of Seller (the "Excluded Liabilities"):
(a) Any Liabilities of Seller in Section 2.02(a) respect of any Excluded Assets or Section 2.02(b) other assets of Seller which are not Purchased Assets, except to the contrary, as of extent caused by the Closing, the Delayed Closing acts or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none omissions of Buyer or its Affiliates shall assume Representatives or have any responsibility forBuyer's ownership, the following Liabilities of Parent lease, maintenance or its Affiliates (the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xib) Any Liabilities of Seller in respect of Taxes attributable to the Purchased Assets for taxable periods ending before the Closing Date, except for Taxes for which Buyer is liable pursuant to Section 3.5 or 6.6;
(c) Any Liabilities of Seller arising from the breach prior to the Closing Date by Seller of any Liability related of the Seller's Agreements;
(d) Any and all Liabilities to third parties for personal injury or tort, or similar causes of action to the extent arising out of the Restructuringownership, lease, maintenance or operation of the Purchased Assets prior to the Closing Date, other than the Liabilities assumed by Buyer under Section 2.3(d);
(xiie) without limiting Any fines or penalties imposed by any Governmental Authority resulting from any violation of law by Seller that occurred prior to the rights and Closing Date;
(f) Any payment obligations of Seller or its Affiliates for goods delivered or services rendered prior to the parties Closing Date, other than the Liabilities assumed by Buyer under Article VII, any Section 2.3(d);
(g) Liability for Taxes relating Remediation of Environmental Conditions at, on, under or migrating from the Purchased Assets, but only to the extent that (i) such Liability arises out of or derives from the same facts which form the basis of a conviction, guilty plea or plea of nolo contendere by Seller for a violation of Environmental Laws by Seller; (ii) Seller's conviction, guilty plea or plea of nolo contendere was based on Seller's intentional and willful wrongful actions; and (iii) Seller's conviction, guilty plea or plea of nolo contendere arises from a matter as to which Seller has received written notice from a Governmental Authority on or before the sixth anniversary of the Closing Date.
(h) Any Liability under or related to Environmental Laws or the common law arising as a result of or in connection with loss of life, injury to persons or property or damage to natural resources (whether or not such loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date) caused (or allegedly caused) by the disposal, storage, transportation, discharge, migration of, Release or recycling of Hazardous Substances at an Off-Site Location, or the arrangement for such activities, prior to the Closing Date, in connection with the ownership, lease, maintenance or operation of the Purchased Assets, provided that, for purposes of this Section, "Off-Site Location" does not include any location to which Hazardous Substances disposed of or Released at the Purchased Assets have migrated;
(i) Any Liability under or related to Environmental Laws or the common law arising as a result of or in connection with the Remediation (whether or not such Remediation commenced before the Closing Date or commences on or after the Closing Date) of Hazardous Substances that are disposed, stored, transported, discharged, migrating from, Released, recycled, or the arrangement of such activities, in connection with the ownership, lease, maintenance or operation of the Purchased Assets, at any Off-Site Location, prior to the Closing Date; provided that, for purposes of this Section, "Off-Site Location" does not include any location to which Hazardous Substances disposed of or Released at the Purchased Assets have migrated;
(j) Any Liability under or related to Environmental Laws or the common law arising as a result of or in connection with the ownership, lease, maintenance or operation by Seller or its Affiliates of the Transmission Assets prior to, on or after the Closing Date, except to the extent caused by the acts or omissions of Buyer or Buyer's ownership, lease, maintenance or operation of the Purchased Assets;
(k) Any Liabilities relating to any Benefit Plan maintained by Seller or any trade or business (whether or not incorporated) which is or ever has been under common control, or which is or ever has been treated as a single employer, with Seller under Section 414(b), (c), (m) or (o) of the Code ("ERISA Affiliate") or to which Seller and any ERISA Affiliate contributed thereunder (the "ERISA Affiliate Plans"), maintained by, contributed to, or obligated to contribute to, by Seller or any ERISA Affiliate, including any Liability (i) to the Pension Benefit Guaranty Corporation under Title IV of ERISA; or (ii) with respect to any Pre-noncompliance by Seller with ERISA or any other applicable Laws, but not including any Liabilities assumed by Buyer pursuant to Section 6.8;
(l) Any Liabilities relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination by Seller of any individual, attributable to any action or inaction by Seller prior to the Closing Tax PeriodDate other than such actions or inactions taken at the direction of Buyer;
(m) Any obligation to provide continuation coverage under COBRA (and notice of the right to elect such coverage) to Transferred Employees, determined in accordance employees associated with the principles Purchased Assets who do not become Transferred Employees (and their dependents or former dependents), and former dependents of Transferred Employees who became eligible for continuation coverage under COBRA on account of a "qualifying event" (as defined under COBRA) occurring before the Closing Date (but not including any Liabilities assumed by Buyer pursuant to Section 7.016.8); and
(xiiin) Subject to Section 6.11, any Liability arising out of Liabilities under the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)bonds listed on Schedule 6.11.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Atlantic City Electric Co)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contraryThe term "EXCLUDED LIABILITIES" shall mean, as of the Closingcollectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following all Covered Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from (a) the Excluded Assets individually or taken as a whole, except to the extent allocated to Purchaser, the Dominick's Group or any Parent Plan of their Affiliates under the Tax Matters Agreement or for which Parent allocated to Dominick's under the Asset Transfer Agreement, (b) the Excluded Subsidiaries or its the business conducted by either of them prior to or following the Closing Date except to the extent allocated to Purchaser, the Dominick's Group, or any of their Affiliates are responsible under the Tax Matters Agreement or allocated to Dominick's under the Asset Transfer Agreement, (c) the transfer of the Excluded Assets and the Excluded Subsidiaries pursuant to Article VI but excluding Employment Related Liabilities the Asset Transfer Agreement except to the extent allocated to Purchaser, the Dominick's Group, or any of their Affiliates under the Tax Matters Agreement or allocated to Dominick's under the Asset Transfer Agreement, (d) all other liabilities assumed by the Shareholders under the Asset Transfer Agreement, and (e) all liabilities of the Company on the Closing Date (other than those referenced in Section 3.6(b)(iii) hereof to the extent allocated to Purchaser, any member of the Dominick's Group or any of their Affiliates under the Tax Matters Agreement), and (f) any liabilities of the Dominick's Group to the minority shareholders of Dominick's or the holders of the stock appreciation rights relating to the Dominick's capital stock in respect of any Continuing Employee which are assumed by operation of Law by the Buyer such rights or its Affiliates pursuant to the Transfer Regulations (and stock, which, for the avoidance of doubtin either case, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold outstanding immediately prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness consummation of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates Stock Redemption (other than the Transferred Subsidiaries), on the one hand, and any Affiliates obligation of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates Dominick's to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to effect the transactions contemplated by this Agreement Section 5.10 hereof and (B) other than such liabilities and obligations as Holdings, Purchaser, or any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent member of the Dominick's Group or any of its their Affiliates may have as a result of or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating its issuance to any Actions involving Parent such holder of any stock appreciation rights, options, stock, or other security in exchange for all or any portion of its directors such holders' stock appreciation rights or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights stock), and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).including liabilities
Appears in 1 contract
Sources: Stock Purchase Agreement (Dominicks Supermarkets Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or Seller and its Affiliates shall will retain or assume, as applicable, and shall will be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates Seller, except to the extent any such Liabilities constitute Assumed Liabilities (the “Excluded Liabilities”):
(ia) those all Liabilities not of Seller or its Affiliates, as applicable, to third-party customers and third-party suppliers and service providers relating to or arising out of the Business or the Purchased Assets (Assets, other than the Liabilities referred to in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded herebySection 1.3(a);
(iib) those all Liabilities relating to or arising from any Parent Plan or for which Parent of Seller or its Affiliates are responsible pursuant Affiliates, as applicable, under the Assigned Contracts, other than the Liabilities referred to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of IndebtednessSection 1.3(b);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ixc) all Liabilities arising from or relating to the Purchased Assets, other than the Liabilities referred to in Section 1.3(c);
(d) all Liabilities arising from or related to the Facility Leases, other than the Liabilities referred to in Section 1.3(d);
(e) all accounts payable for services performed or goods received prior to the Closing, except as set forth on Schedule 1.3(a);
(f) any Actions involving Parent Liabilities or obligations of Seller or any of its directors Affiliates arising from or officers relating to the employment or, termination of employment, layoff and/or reduction of hours of any Prospective Employee (including any Transferred Employee and any Prospective Employee who rejects an offer of employment from Purchaser), on or before the Closing, including any liabilities and/or obligations (including the provision of proper notice, payment and benefits) arising out under or in connection with: (i) any Seller Benefit Plan, including any obligation to provide continuation of this Agreement coverage thereunder pursuant to Code Section 4980B and Sections 601-608 of ERISA, and (ii) the United States Worker Adjustment and Retraining Notification Act of 1988 or similar law of any state of the transactions contemplated herebyUnited States collectively, the “Worker Notification Laws”) related to an “employment loss,” as that term is defined in the Worker Notification Laws, as well as any Liabilities or obligations whether on, before or after Closing, relating to any Prospective Employee who does not become a Transferred Employee;
(xg) any Liability to the extent it relates to (i) Taxes of Seller (or arises out any shareholder or Affiliate of any Excluded Asset Seller) or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with any Tax relating to Seller or the principles Purchased Assets, (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or (iii) other Taxes of Seller (or any shareholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any shareholder or Affiliate of Seller)) that becomes a Liability of Purchaser under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of Contract or Legal Requirements. Notwithstanding the foregoing, Taxes related to the Purchased Assets that are allocable between the Pre-Closing Tax Period and the Taxable period beginning after the Closing Date pursuant to Section 7.019.2(c) of this Agreement shall not be treated as Excluded Liabilities to the extent that such Taxes are allocable to the portion of the Taxable period beginning after the Closing Date;
(h) all Liabilities arising from the Excluded Assets; and
(xiiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)all Liabilities that are not Assumed Liabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything The Transferee is only assuming the liabilities -------------------- and obligations of the Transferor expressly set forth in Section 2.02(asection 2.
1. Without limiting the generality of the foregoing, the Transferee shall not be assuming, and the Transferor shall remain responsible for and shall promptly pay, perform and discharge, all of the liabilities and obligations of the Transferor other than the Assumed Liabilities (the "Excluded Liabilities") or Section 2.02(b) such that the Transferee will incur no liability in connection therewith, and the Transferor shall indemnify the Transferee with respect to and shall hold the Transferee harmless from and against all such Excluded Liabilities, subject to the contrary, as terms and conditions of section 12 herein including but not limited to the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):following:
(i) those Liabilities not relating to any obligation or arising out liability of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable Transferor to the Business extent that the Transferor shall be excluded hereby)indemnified by an insurer;
(ii) those Liabilities relating any expenses of the Transferor incurred in connection with the transactions contemplated hereunder (including but not limited to fees and expenses of finders, investment bankers, business brokers, attorneys and accountants), it being understood that all such expenses shall be paid by the Transferor out of the Excluded Assets or arising from any Parent Plan or for which Parent or its Affiliates are responsible the consideration to be delivered to the Transferor pursuant to Article VI but excluding Employment Related Liabilities in respect this agreement for the Acquired Assets to be sold to the Transferee hereunder, and not out of any Continuing Employee which are assumed by operation of Law the Acquired Assets; provided that, notwithstanding anything else contained herein, such fees and expenses of attorneys and accountants may be paid by the Buyer or its Affiliates pursuant Transferor prior to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of IndebtednessClosing in accordance with section 7.1(iii)(D);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Scheduleany obligations relating to an Excluded Asset;
(iv) those Liabilities any liability for Taxes of the Transferor or relating to an Acquired Asset with respect to any period on or before the Closing Date, except as expressly provided otherwise in section 3.2;
(v) any indebtedness for borrowed money or any guaranty thereof, except as set forth in section 2.1;
(vi) any amount due to any Shareholder, officer or Affiliate;
(vii) any pension, profit-sharing or workmen's compensation or other employee benefit or post retirement plan and any liability or obligation arising out of product warranty obligations (express or implied) thereunder except to the extent that the Transferee expressly agrees to continue particular benefits and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to plans following the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability except to the extent it relates to or arises out of any Excluded Asset or is not primarily related set forth in section 2.1(a)(iii) for warranty obligations in the ordinary course, consistent with past practice, and except to the Business extent of reserves taken on the books of the Transferor, any liability or the Purchased Assets;
(xi) any Liability obligation for, with respect to, related to or arising out of any goods sold, shipped or delivered by the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating Transferor prior to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01Closing; and
(xiiiix) any Liability all claims of employees arising out of events, conditions and circumstances existing or occurring prior to Closing, including, but not limited to, medical and health claims and disability claims, but excluding wages paid during the failure to advertise pay period in which the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Closing occurs.
Appears in 1 contract
Sources: Asset Contribution and Exchange Agreement (Medsource Technologies Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(aBuyer shall not assume, and shall not be deemed to have assumed, any Liabilities of Sellers, and Sellers shall be solely and exclusively liable and shall indemnify and hold harmless Buyer and its Affiliates with respect to all Liabilities of Sellers other than the Assumed Liabilities, including those Liabilities set forth below (collectively, the "EXCLUDED LIABILITIES"):
(a) Any Liabilities which arise, whether before, on or Section 2.02(b) to the contrary, as of after the Closing, out of, or in connection with, the Delayed Closing Excluded Assets, including any Contract which is not an Assumed Contract;
(b) Any Liabilities under the Assumed Contracts or accounts payable to the extent not assumed pursuant to SECTION 2.3;
(c) Any Liabilities arising from a breach of an Assumed Contract to the extent that the event or state of facts giving rise to such Liability occurs prior to the Early Funding Date;
(d) Any Liabilities arising out of, or in connection with, any pending or threatened Litigation arising out of the operation of the Business to the extent that the event or state of facts giving rise to such Liability occurs prior to the Early Funding Date;
(e) Any Liabilities arising out of or in connection with any indebtedness of Sellers or any applicable Later Closingof their respective Affiliates to their lenders, Parent noteholders or its Affiliates shall retain otherwise (other than, to the extent provided in SECTION 2.3, post-petition Liabilities relating to Assumed Contracts which are characterized as capital leases by Sellers);
(f) Any Liabilities for which Sellers have received an invoice which is not taken into account in the determination of Early Funding Date Working Capital;
(g) Liabilities related to Shared Technologies or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Shared Hosting Business;
(h) Liabilities of Parent or its Affiliates (related to the “Excluded Liabilities”):Owned Real Property;
(i) those Any Liabilities not of Sellers or any Affiliate thereof (or any predecessor thereto) relating to Taxes (other than Transfer Taxes referred to in SECTION 2.3(d) and Taxes described on EXHIBIT K), including all Taxes attributable to or incurred in any period (or portion thereof) ending on or before the Early Funding Date;
(j) All Liabilities of any Seller, any of their Affiliates or any predecessor of any Seller resulting from, caused by or arising out of, directly or indirectly, the conduct of the Business or the Purchased Assets (any Sellers' or any of their Affiliates ownership, operation or lease of any properties or assets or any properties or assets previously used in the case Business by any Seller, any of those Liabilities shared by the Business and the Medical Device Business, only that portion their Affiliates or any predecessor of such Liabilities not attributable any Seller or any of their Affiliates at any time prior to the Business shall be excluded hereby)Early Funding Date, that constitute, may constitute or are alleged to constitute a violation of or Liability arising under any Environmental Law or other Law including any state or federal communications law or regulation;
(iik) those All Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement employment, or termination of employment, of any Employee, former Employee, independent contractor or contingent worker with respect to the Business, including pursuant to Employee Benefit Plans, other than those specifically assumed pursuant to SECTION 2.3 and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;6.8 herein; and
(viiil) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all All Liabilities arising from or relating to any Actions involving Parent or collective bargaining agreement, including any of its directors or officers relating obligation for benefits to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VIIemployees covered thereunder and, specifically, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Multiemployer Plan liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any other provision in Section 2.02(a) this Agreement, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or Section 2.02(b) the Subsidiaries or their respective Affiliates of whatever nature, whether presently in existence or arising hereafter (all such liabilities and obligations not being assumed being herein referred to the contrary, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):), and, notwithstanding anything to the contrary, the Assumed Liabilities shall not include for the purposes of this Agreement, without limitation, any of the following:
(ia) those Except as set forth in Section 7.12 and except for indebtedness under Capital Leases, any indebtedness of Seller or any of the Subsidiaries;
(b) Any Liabilities not relating to or the extent arising out of the Business or the Purchased Assets relating to an Excluded Asset;
(in the case of those c) Any Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded herebyextent arising from or as a result of the conduct of any business of Seller or any of the Subsidiaries other than the Business;
(d) Liabilities with respect to any Legal Proceedings (including all Legal Proceedings set forth on Schedules 2.2(k) and 5.14);
(iie) those Liabilities relating to or arising from Except for any Parent Plan or for which Parent or its Affiliates are responsible non-income Taxes in the amount assumed by Purchaser pursuant to Article VI but excluding Employment Related Liabilities in respect of Section 2.3(b) and any Continuing Employee which are assumed Transfer Taxes to be paid by operation of Law by the Buyer or its Affiliates Purchaser pursuant to the Transfer Regulations Section 7.10(d) hereof, (and which, for the avoidance A) any Liabilities of doubt, are intended to be included within the definition Seller or any Affiliate of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recallsthe Transferred Subsidiaries) for products the Taxes of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent Seller or its Affiliates (other than accounts payable the Transferred Subsidiaries) and (B) all Taxes of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent Person imposed on Seller or any of its Affiliates (other than the Transferred Subsidiaries)) as a result of being a member of any consolidated, on the one handcombined, and any Affiliates of Parent (other than the Transferred Subsidiaries)affiliated or unitary Tax group or as a transferee or successor, on the other handby contract, or otherwise;
(viif) (A) all obligations Any Liabilities and expenses for any accounting, legal, investment banking, brokerage or similar fees or expenses incurred by Seller or any of Parent or its Affiliates in connection with the negotiation and preparation of this Agreement and each of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby;
(g) Any Liabilities relating to Business Employees of Seller and the Subsidiaries with respect to their employment or service relationship with Seller and/or its Subsidiaries, whether or not arising under any brokerBenefit Plan, finder other than a Transferred Benefit Plan as provided in Section 7.8, for periods ending on or agent for prior to the Closing Date, other than those expressly assumed by Purchaser pursuant to this Agreement or which are reflected in Working Capital as of the Closing Date;
(h) any investment banking or brokerage fees, finders’ fees or commissions Liabilities relating to the transactions contemplated by this Agreement and (B) design, manufacture, marketing, sale, distribution or other disposition of Retained Aviation Products, including any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderobligation to maintain any insurance with respect thereto;
(viiii) all Any Liabilities relating to any confidentiality, nonstock option or other equity-solicitation or similar agreements entered into based award granted by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposalany Transferred Employee;
(ixj) all Any Liabilities arising from or relating to any Actions involving Parent or any bonus that may become payable to a Transferred Employee as a result of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Ptyother than any such bonus agreement between Purchaser or any of its Affiliates and such Transferred Employee);
(k) Ltd. under Section 34 Any Liabilities relating to any claim for personal injury and/or property damage to the extent arising out of pre-Closing occurrences or the operation of the Insolvency Business or the sale of Products prior to the Closing Date and based on product liability, strict liability or other similar theories of recovery, but excluding any Liabilities arising under worker’s compensation legislation to the extent such Liabilities would be covered by worker’s compensation insurance coverage required by applicable Law to be maintained by Purchaser;
(l) Any Liabilities of Seller and the Subsidiaries existing as of the Closing Date which should have been reflected on the Business Balance Sheet or the Closing Date Statement and which are not so reflected, unless they are Assumed Liabilities;
(m) Any Liabilities (including, without limitation, any severance, restructuring, relocation, and environmental and clean up costs) to the extent arising from or related to the closing of the Concord Facility;
(n) Any Liabilities arising from or related to the sale of the facility located in Stouffville, Ontario to Southwire Canada Company, including all Liabilities arising under all Contracts entered into in connection with such sale;
(o) Subject to Section 7.8, any Liabilities arising under the WARN Act and other similar applicable Laws due to any actions taken by Seller or any Subsidiary prior to the Closing Date with regard to any site of employment, facility, operating unit or employee affected by this Agreement (South Africaincluding the Concord Facility), except for any Liability resulting from any action taken by Purchaser; and
(p) Any Liabilities or obligations owed to Parent, Seller or any of their respective Affiliates to the extent not reflected in Working Capital as of the Closing Date, other than pursuant to the Transaction Documents and the Assigned Agreements.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Neither Buyer nor Buyer's Affiliates will assume, nor will they become responsible for, any liability or obligation of Seller or Seller's Affiliates that is not specifically identified as an Assumed Liability under Section 2.02(a) or Section 2.02(b) to the contrary2.3, as including any and all of the Closingfollowing (collectively, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “"Excluded Liabilities”"):
(ia) those Liabilities not all liabilities and obligations of Seller or Seller's Affiliates arising under this Agreement, the Other Agreements or from the consummation of the transactions contemplated hereby or thereby;
(b) all liabilities and obligations of Seller or Seller's Affiliates arising from or related exclusively to the Indian Business or arising from or related exclusively to the Animal Applications Business;
(c) all intercompany payable balances owing to Seller or Seller's Affiliates;
(d) all obligations related to employees of Seller, including obligations with respect to withholding Taxes of employees, termination and severance pay and all vacation and medical benefits;
(e) any and all liabilities, obligations, claims, causes of action or litigation involving the Product Line based upon, directly relating to or arising out of the Business acts, omissions or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Businessevents occurring prior to Closing, only that portion of such Liabilities not attributable except to the Business shall be excluded hereby)extent specifically described in and expressly assumed by Buyer pursuant to Section 2.3 hereof;
(iif) those Liabilities relating all product liability and warranty claims or any similar claim for injury to any person or property, regardless of when made or asserted, involving the Product Line arising from any Parent Plan exclusively out of acts, omissions or for which Parent events occurring, or its Affiliates are responsible pursuant Products manufactured by Seller or Seller's Affiliates, prior to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed the Closing or that is imposed by operation of Law in connection with any Product manufactured by the Buyer Seller or its Seller's Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(vg) all accounts payable, Expenses and Indebtedness of Parent any Taxes payable with respect to the Product Line or its Affiliates the Closing Assets for any period ending prior to the Closing Date (other than accounts payable any Taxes that are the responsibility of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiaryBuyer pursuant to Section 2.3(b));
(vih) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating liabilities related exclusively to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xii) any Liability related of Seller's accounts payable, accrued expenses or other current liabilities, except to the extent assumed by Buyer pursuant to Section 2.3 hereof;
(j) except to the extent expressly assumed by Buyer pursuant to Section 2.3(d) or Section 2.3(e) hereof, any obligations and liabilities for refunds, advertising, coupons, free-standing inserts, adjustments, allowances, repairs, exchanges and returns relating exclusively to any Product to the extent such obligations and liabilities relate to offers issued or commitments made prior to the Closing Date;
(k) any liabilities or obligations arising out of or in connection with any act, omission or circumstance comprising a breach of the RestructuringContracts occurring prior to the Closing Date, regardless of when any such liability is asserted;
(xiil) any liabilities or obligations (i) arising by reason of any violation or alleged violation of any Law or any other requirement of any Governmental Authority, including, without limiting the rights and obligations of the parties under Article VIIlimitation, any Liability for Taxes failure to obtain any relevant governmental permit, license, consent or authorization, (ii) except as specifically provided in Section 2.3, arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree or (iii) relating to the Purchased Assets environment or any hazardous, toxic or chemical substances, including, without limitation, those defined as "toxic" or "hazardous" under any environmental law, with respect to any Pre-the events, acts, omissions or circumstances existing or occurring prior to the Closing Tax Period, determined in accordance with the principles of Section 7.01Date; and
(xiiim) any Liability arising out other liabilities, regardless of when made or asserted, that are not included in the failure to advertise the transactions contemplated Assumed Liabilities or otherwise assumed by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Buyer hereunder.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything the provisions of Section 4.1, -------------------- ----------- Purchaser shall not assume any of the following liabilities and obligations of the Seller or of the Businesses (the "Excluded Liabilities"): --------------------
(a) Any liability or obligation relating to Indebtedness of Seller or of any Affiliate of Seller, and any account payable in which the creditor is a Related Party;
(b) Without limiting the effect of Section 2.3, any liability or ----------- obligation relating to any Excluded Asset (including, but not limited to, any liabilities, warranties or performance obligations relating to the Contracts referred to in Section 2.02(a) 2.2.3), and any liability or Section 2.02(b) obligation of Seller to the contrary------------- extent, as and only to the extent, not related to the Assets or the Businesses;
(c) Any liability relating to the Businesses to the extent, and only to the extent, of the Closingcoverage available under the Insurance Policies for losses occurring prior to the Closing Date (as further provided in Section 8.4), ----------- including as an Excluded Liability (i) any deductible or self-insurance retention relating to workers compensation insurance and (ii) any deductible relating to any accident or loss known to Seller at or prior to the Delayed Closing Date;
(d) Any liability or any applicable Later Closing, Parent obligation with respect to Nonassignable Contracts and Nonassignable Permits to the extent such liability or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “obligation is deemed an Excluded Liabilities”):Liability pursuant to Section 2.3.3; -------------
(i) those Liabilities not Any liability or obligation relating to Plans except those liabilities assumed pursuant to Section 7.1.4, (ii) any liability or arising out obligation ------------- that arises from the failure, on or prior to the Closing Date, of (A) any Union Pension Plan being assumed by Purchaser pursuant to Section 7.1.4(j) to be ---------------- qualified under Section 401(a) of the Business Code, or (B) any trust forming a part thereof to have received a favorable determination letter from the Purchased Assets (in Internal Revenue Service as to its qualification under the case of those Liabilities shared by the Business Code and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby)effect that the trust is exempt from taxation under section 501(a) of the Code, and (iii) any withdrawal or other liability relating to Seller's participation in any "multiemployer pension plan" as defined in Section 3(37) of ERISA;
(iif) those Liabilities relating All liabilities and obligations to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which relate to any and all claims for workers' compensation benefits which (i) are assumed by operation listed on Section 4.2(f) of Law by the Buyer or its Affiliates pursuant PDM Disclosure Schedule, (ii) have been reported to Seller prior to the Transfer Regulations Closing Date or (and which, for iii) are the avoidance result of doubt, are intended any injury or accident occurring prior to be included within the definition of Indebtedness)Closing Date;
(iiig) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product Any liability claims (for Taxes, other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), those liabilities properly accrued on the one handAudited Final Balance Sheet, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent Seller or any of its Affiliates or its attributable to the ownership of the Assets or their Representatives in connection with the operations of the Businesses for all taxable periods (or portions thereof) ending on or before the Effective Time, including, without limitation, potential liability relating to an Acquisition Proposalthe application of Venezuela income tax credits;
(ixh) all Liabilities arising from Any liabilities or obligations relating to any Actions involving Parent Seller's properties located at Des Moines, Iowa or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability Warren, Pennsylvania except to the extent it relates to or arises out of any Excluded Asset or is not primarily related expressly assumed by Purchaser pursuant to the Business DesMoines Lease or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01▇▇▇▇▇▇ Lease; and
(xiiii) Any liabilities (including, but not limited to, Losses and administrative, civil or criminal fines, penalties or assessments) or obligations relating to or concerning (i) any Liability arising out alleged or actual violation of Environmental Laws, or any Release or threatened Release of Hazardous Substances at any property formerly owned, used, occupied or leased by Seller, or (ii) any site or facility to which the failure Seller has or the Divisions have transported or arranged for the transportation, whether directly or indirectly by a third party, of Hazardous Substances for storage, treatment, disposal or other management to advertise the transactions contemplated extent such Hazardous Substances were generated by this Agreement Seller at any property formerly owned, used, occupied or leased by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Seller.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) Except to the contrary, as extent any of the Closingfollowing liabilities or obligations are governed by an inconsistent provision in a written agreement among the parties hereto [(such as the Interconnection Agreement)], the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Transferee shall retain or assume, as applicable, not assume and shall not be responsible for payingto pay, performing and discharging when dueperform or discharge any liabilities or obligations of Transferor other than the Assumed Liabilities (collectively, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):), regardless of whether such Excluded Liabilities are asserted before or after the Effective Time. Notwithstanding anything to the contrary in this Agreement, Transferor’s indemnification obligations with respect to Excluded Liabilities as set forth in Section 8.2.3 shall survive the Closing. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
2.4.1. any liabilities or obligations arising out of or relating to (i) those Liabilities the ownership of the Transferred Assets prior to the Effective Time; (ii) the operation of the Transmission Facilities prior to the Control Date; or (iii) the design, engineering, or construction of the Transmission Facilities, including without limitation any completion of construction by Transferor after the Effective Time pursuant to Section 6.9;
2.4.2. any liabilities or obligations arising out of or relating to any payment claims or lien rights which may be asserted by any contractor, subcontractor or vendor of any tier, whether such assertion is made before or after the Effective Time and whether such rights relate to work performed before the Effective Time or after the Effective Time pursuant to Section 6.9;
2.4.3. any liabilities or obligations arising out of or relating to any Permit or Governmental Order for the construction of the Transmission Facilities, or the failure by Transferor or any of its Affiliates to comply with any Applicable Law, Permit or Governmental Order relating to the Transferred Assets;
2.4.4. any liabilities or obligations arising out of or relating to the siting of the Transmission Facilities, including without limitation, any failure to obtain necessary approvals or Permits for the siting of the Transmission Facilities;
2.4.5. any liabilities or obligations under any Partially Assigned Contract and not resulting from any amendment entered into by Transferee;
2.4.6. any liabilities or obligations relating to or arising out of the Business Excluded Assets, including without limitation Transferor’s generation facilities;
2.4.7. any liabilities or obligations for (i) Taxes relating to the Transferred Assets or the Purchased Assets (in Assumed Liabilities for any taxable period ending prior to the case of those Liabilities shared by Effective Time and with respect to any taxable period beginning before and ending after the Business and Effective Time, the Medical Device Business, only that portion of such Liabilities not attributable to taxable period that occurs before the Business shall be excluded hereby);
Effective Time, and (ii) those Liabilities relating to any other Taxes of Transferor or arising from any Parent Plan Affiliates of Transferor for any taxable period;
2.4.8. any liabilities or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities obligations in respect of any Continuing Employee which are assumed by operation pending or threatened action or claim relating to Transferor, its Affiliates, or the Transferred Assets;
2.4.9. any liabilities or obligations of Law by the Buyer Transferor or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking present or brokerage fees, finders’ fees former employee or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01independent contractor; and
(xiii) 2.4.10. any Liability arising out liabilities or obligations associated with debt, loans or credit facilities of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Transferor or its Affiliates.
Appears in 1 contract
Sources: Asset Transfer Agreement
Excluded Liabilities. Notwithstanding It is expressly understood and agreed that, notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, as of the Closing, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Seller shall retain or assume, as applicable, and shall be solely responsible for payingperforming, performing discharging or satisfying all obligations and discharging when dueliabilities of Seller that are not expressly assumed by Buyer pursuant to Section 1.1(c), and none of Buyer or its Affiliates shall assume or have any responsibility for, including the following Liabilities of Parent or its Affiliates (collectively, the “Excluded Liabilities”):
(i) those Liabilities not relating to or All obligations and liabilities arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable relating to the Business shall be excluded hereby)Excluded Assets;
(ii) those All obligations and liabilities of Seller for Environmental Matters, Releases of Materials of Environmental Concern and Off-Site Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities (all as defined in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant Section 2.17(a)(vi)), subject to the Transfer Regulations (and which, for the avoidance of doubt, are intended limitations in Article VIII on Seller’s obligation to be included within the definition of Indebtedness)indemnify Buyer;
(iii) those Liabilities set forth on Section 2.02(c)(iii) All obligations and liabilities of Seller for Taxes to the Seller Disclosure Scheduleextent provided in Article IX;
(iv) those Liabilities All obligations and liabilities in respect of employee relations and benefits except to the extent assumed by Buyer in Section 10.4;
(v) All obligations and liabilities in respect of workers’ compensation claims relating to injuries or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints events that do not arise out of injury to person or property and other than product recalls) for products of the Business sold occurred prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables obligations and loans between Parent liabilities under or any arising out of its Affiliates (other than the Transferred Subsidiaries), Contracts that are a result of Seller’s breach or non-performance thereof where the claims in respect of such obligations and liabilities are asserted on or prior to the one hand, and any Affiliates three-year anniversary of Parent (other than the Transferred Subsidiaries), on the other handClosing Date;
(vii) (A) all obligations and liabilities under the Licenses transferred pursuant to Section 1.1(a)(viii), if any, that are a result of Parent Seller’s breach or its Affiliates to any broker, finder non-performance thereof where the claims in respect of such obligations and liabilities are asserted on or agent for any investment banking or brokerage fees, finders’ fees or commissions relating prior to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunderthree-year anniversary of the Closing Date;
(viii) all Liabilities relating obligations and liabilities arising out of the ownership, use or operation of any Owned Real Property to any confidentialitythe extent such obligations and liabilities (A) result from Seller’s ownership, nonuse or operation thereof prior to the Closing Date and (B) either claims in respect thereof are asserted on or prior to the three-solicitation year anniversary of the Closing Date or similar agreements entered into such obligations and liabilities are retained by Parent or any of its Affiliates or its or their Representatives in connection with or relating Seller pursuant to an Acquisition Proposalthis Section 1.1(d) and Article VIII;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or obligations and liabilities arising out of the ownership, leasing, operation or use of any Leased Facility to the extent such obligations and liabilities (A) result from Seller’s ownership, leasing, operation or use thereof prior to the Closing Date and (B) either claims in respect thereof are asserted on or prior to the three-year anniversary of the Closing Date or such obligations and liabilities are retained by Seller pursuant to this Agreement or the transactions contemplated herebySection 1.1(d) and Article VIII;
(x) all obligations and liabilities arising out of or relating to the repair, rework, replacement or return of, or any Liability claim for breach of warranty in respect of or refund of the purchase price of, products or goods sold, or services provided, prior to the Closing Date to the extent it relates to claims in respect of such obligations and liabilities are asserted on or arises out of any Excluded Asset or is not primarily related prior to the Business or three-year anniversary of the Purchased AssetsClosing Date;
(xi) any Liability related to or all obligations and liabilities arising out of or relating to any product liability or service liability claim (including any such claim arising out of or relating to injury to or death of persons), damage to or destruction of property, in each case relating to products or goods sold, or services provided, prior to the RestructuringClosing Date to the extent claims in respect of such obligations and liabilities are asserted on or prior to the three-year anniversary of the Closing Date;
(xii) without limiting the rights All obligations and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets liabilities with respect to all actions, suits, proceedings, disputes, claims or investigations arising or relating to any Pre-period prior to the Closing Tax PeriodDate, determined in accordance with regardless of whether any such action, suit, proceeding, dispute, claim or investigation was commenced prior to, on or after the principles of Section 7.01Closing Date; and
(xiii) All other obligations and liabilities of Seller which are not Assumed Liabilities. Neither Buyer nor any Affiliate, employee, agent or other representative of Buyer shall undertake, directly or indirectly, any voluntary action, investigation or program whose sole or primary purpose is designed to discover or expose any obligation or liability of Seller that is or could reasonably be expected to constitute an Excluded Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)hereunder.
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Perkinelmer Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrarycontrary in this Agreement, the Parties expressly acknowledge and agree that Buyer shall not assume, be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of the Selling Entities, whether existing on the Closing Date or arising thereafter as a result of any act, omission or circumstances taking place prior to the Closing, other than the Delayed Closing or any applicable Later Closing, Parent or its Affiliates shall retain or assume, Assumed Liabilities (all such Liabilities that Buyer is not expressly assuming under Section 2.3 being referred to collectively as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):). Without limiting the foregoing, Buyer shall not be obligated to assume, does not assume, and hereby disclaims all the Excluded Liabilities, including the following Liabilities of any of the Selling Entities or of any predecessor of any of the Selling Entities, whether incurred or accrued before or after the Petition Date or the Closing:
(a) Except as provided in Section 2.3(g) of this Agreement, all Taxes of any of the Selling Entities, including (i) those Liabilities not relating to or arising out Taxes imposed on any of the Business or Selling Entities for any period and/or in connection with the Purchased sale of the Acquired Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and whichincluding, for the avoidance of doubt, are intended to be included within the definition Transfer Taxes), (ii) all taxes imposed on any of Indebtedness);
the Selling Entities under Treasury Regulations Section 1.1502-6 and similar provisions of state, local or foreign Tax Law, including all sales Taxes collected by the Selling Entities in connection with the pre-Closing operation of the Business and (iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or all Taxes arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury related to person or property and other than product recalls) for products of the Business sold or to the Acquired Assets for all periods ending prior to the Closing;
(vb) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable Liabilities of any Transferred Subsidiary included of the Selling Entities incurred in connection with or related to the calculation Bankruptcy Case and/or its administration, including any of Net Working Capital the Selling Entities’ Liabilities relating to the purchase of goods or services before or after the Petition Date (including the Allowed 503(b)(9) Claims that are in excess of the 503(b)(9) Claim Cap, and Indebtedness excluding Liabilities under Assumed Purchase Orders and the Allowed 503(b)(9) Claims up to the 503(b)(9) Claim Cap) and Liabilities relating to legal services, accounting services, financial advisory services, investment banking services or any other professional services (“Professional Services”) performed in connection with the Bankruptcy Case, this Agreement and/or any of the transactions contemplated, hereby, and any Transferred Subsidiary)pre-Petition Date or post-Petition Date Claims or other Liabilities, including for such Professional Services;
(vic) except to the extent expressly assumed by Buyer pursuant to Section 7.7, all intercompany payables and loans between Parent Liabilities or claims arising out of, relating to or with respect to (i) the employment or performance of services for, or termination of employment or services for, or potential employment or engagement for the performance of services for, any of the Selling Entities (or any predecessor) of its Affiliates any individual Person (other than including the Transferred Subsidiaries)Employees) or any Person acting as a professional employer organization, employee leasing company or providing similar services on or prior to the one hand, and any Affiliates Closing (including as a result of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement Agreement), including Liabilities or claims for or relating to any non-compliance of the Selling Entities or the Business with (and (Bclaims that have been or may be made under any pending Action in connection with) any other fees Laws relating to wages, hours, pay equity, employment equity, conditions of employment, employment standards, human rights, employee privacy, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation, the collection and payment of withholding Taxes and/or social security Taxes and contributions and any similar Tax or expenses for contribution, severance (including statutory severance), separation, or notice pay or benefits (including under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended and Section 4980B of the Code), Liabilities of the Selling Entities pursuant to the WARN Act, including in connection with the Selling Entities’ termination of employment of any Current Employees (and the Selling Entities shall cause to be filed and delivered all notices in respect thereof) as a result of any transaction contemplated by this Agreement, or any form of accrued or contingent compensation (including leave entitlements), or (ii) any Seller Benefit Plan, subject to ERISA or otherwise (including any Liabilities related to any Seller Benefit Plan which Parent is an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is subject to Section 302 or its Affiliates Title IV of ERISA or Code Section 412), irrespective of whether such Liabilities are expressly responsible for hereunderincurred, recognized, paid or made, as applicable, on, before or after Closing;
(viiid) except as expressly assumed by Buyer under this Agreement, all Liabilities of any of the Selling Entities with respect to and/or claims of any Current Employees, Excluded Employees, Former Employees or Transferred Employees with respect to any period, including any Liabilities with respect to and/or claims of any Transferred Employees arising out of such Transferred Employees’ employment by any of the Selling Entities;
(e) all Liabilities relating to Excluded Assets;
(f) all Liabilities of any confidentialityof the Selling Entities in respect of the Business or the Acquired Assets arising as a result of any Action initiated at any time, non-solicitation to the extent in any way related to matters or similar agreements entered into by Parent circumstances occurring or existing prior to the Closing;
(g) all Liabilities of any of the Selling Entities arising from and/or based on, directly or indirectly, infringement or misappropriation of any Intellectual Property arising out of or related to any conduct of any of the Selling Entities or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposalthe Selling Entities’ operation of the Business;
(ixh) all Liabilities of the Selling Entities in respect of Indebtedness, other than any Indebtedness assumed pursuant to Section 3.2;
(i) all Liabilities arising from in connection with any violation of any applicable Law or Order relating to the period prior to the Closing by any Actions involving Parent of the Selling Entities;
(j) any Liabilities arising under any escheatment, abandoned property or similar Law with respect to the Assumed Liabilities or which otherwise remain with any Selling Entity;
(k) any Claim arising prior to the Closing and not assumed by Buyer pursuant to Section 2.3, including all accounts payable and other amounts payable of any Selling Entity, including any such accounts payable or other amounts owed by any of the Selling Entities to any of the other Selling Entities;
(l) all Cure Payments in respect of any Contract, Real Property Lease or Assumed Contract;
(m) any Liabilities to any shareholder or other equity holder of any of the Selling Entities or any predecessor of its directors or officers relating to or any of the Selling Entities;
(n) any Liabilities arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business any Legal Proceeding commenced or the Purchased Assets;
(xi) threatened against any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, Selling Entities or any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01predecessor thereof; and
(xiiio) any other Liability arising out of the failure to advertise Selling Entities that is not expressly included among the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Assumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to the contrary, as of the ClosingAs used herein, the Delayed Closing term "Excluded -------------------- -------- Liabilities" shall mean: (a) any such liabilities and obligations arising from ----------- or any applicable Later Closing, Parent or its Affiliates shall retain or assume, as applicable, and shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, related to environmental conditions at the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):
(i) those Liabilities not relating to or arising out of the Business Real Property or the Purchased Assets Adjacent Property (in during the case time it was owned by Seller) which were intentionally concealed from Buyer by Seller and of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(ii) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold had no knowledge prior to the Closing;
Close of Escrow; (vb) all accounts payableany liabilities and obligations for remediation of Hazardous Substances which were removed from the Real Property or the Adjacent Property and were disposed of off-site, Expenses including, without limitation, at landfills or other recycling or disposal facilities, prior to the Close of Escrow; (c) fines or penalties assessed against Seller for acts and Indebtedness omissions occurring prior to the Close of Parent Escrow (provided, however, that Buyer does not ----------------- act so as to induce the imposition of such fines and penalties unless Buyer's acts were compelled by law and except to the extent such fines or its Affiliates penalties may be covered by the Insurance Policies); (d) damages and liabilities caused by Seller's breach of this Agreement or any Exhibits attached hereto and incorporated herein; (e) liabilities for personal injury, including death and disability, occurring prior to the Close of Escrow caused to employees, contractors, invitees or guests or any other persons at or from the Real Property or the Adjacent Property, other than accounts payable of any Transferred Subsidiary included in those for which the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent Buyer or any of its Affiliates affiliates is responsible under the Entry Permit, to the extent that such liabilities arise as a result of a failure of any contractor of Seller to maintain the insurance which such contractor was obligated to maintain pursuant to such contractor contract with Seller or to the extent that such liabilities are alleged by an employee or former employee of Seller; (f) any liabilities or obligations arising solely from the SAWPA Plume, the Ontario Litigation or the Mushegain Litigation, as those matters are described more fully in Exhibit O --------- attached hereto; (g) any contractual liabilities of Seller other than those that may be specifically assumed by Buyer in this Agreement or any Exhibit hereto or (h) personal injury, including death and disability, occurring prior to the Transferred Subsidiaries)Close of Escrow caused to employees, on contractors, invitees or guests or any other persons at or from the one handReal Property, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses those for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent the Buyer or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or affiliates is responsible under the transactions contemplated hereby;
(x) any Liability Entry Permit, to the extent it relates to or arises out of any Excluded Asset or such injury is not primarily related to Hazardous Substances conditions at the Business Real Property or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa)Adjacent Property.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to Except for the contrary, as of the ClosingAssumed Liabilities, the Delayed Closing or any applicable Later Closing, Parent or its Affiliates Purchaser shall retain or not assume, as applicableor become liable for the payment or performance of, and shall be responsible for payingany Liabilities of any Seller of any nature whatsoever, performing and discharging when duewhether accrued or unaccrued, and none of Buyer or its Affiliates shall assume or have any responsibility forincluding, without limitation, the following Liabilities of Parent or its Affiliates (collectively, the “Excluded Liabilities”):) which shall remain Liabilities of Sellers:
(a) all Liabilities of the Sellers relating to or otherwise arising, whether before, on or after the Closing Date, out of, or in connection with, any of the Excluded Assets;
(b) all Liabilities of the Sellers in respect of Non-Assumed Contracts;
(c) except to the extent that Liabilities are assumed pursuant to Section 2.3(a) or Section 2.3(g) (which shall be Assumed Liabilities), litigation and related claims and Liabilities arising out of or in connection with events occurring on or prior to the Closing Date, no matter when raised;
(d) any and all Liabilities relating to any environmental, health or safety matter (including any Liability or obligation under any Environmental Law), arising out of or relating to any Seller’s operation of their respective businesses or their leasing, ownership or operation of real property on or prior to the Closing Date no matter when raised;
(e) except to the extent that Liabilities are assumed pursuant to Section 2.3(d), Section 2.3(e) and Section 2.3(g) (which shall all be Assumed Liabilities), all Liabilities of each Seller in respect of Indebtedness, whether or not relating to the Business, including all Liabilities arising under the First Lien Loan Documents and the Second Lien Loan Documents;
(f) except to the extent that Liabilities are assumed pursuant to Section 2.3(a), Section 2.3(c) and Section 2.3(g) (which shall all be Assumed Liabilities), any claims, demands, proceedings or causes of action subject to or covered by the Additional Excluded Insurance Policies;
(g) any and all Liabilities under the Excluded Plans and any Seller Plan not set forth in Section 5.17 of the Seller Disclosure Schedule;
(h) any and all Liabilities of any Seller for Taxes;
(i) those Liabilities not relating any payments due to any equityholders of Sellers in respect of management or arising out other fees other than compensation owed to equityholders who are Employees of the Business or the Purchased Assets (any Seller in the case Ordinary Course of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable to the Business shall be excluded hereby);
(iij) those Liabilities relating to or arising from any Parent Plan or for which Parent or its Affiliates are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those all Liabilities set forth on Section 2.02(c)(iii2.4(j) of the Seller Disclosure Schedule;
(ivk) those any Liabilities relating to or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior to the Closing;
(v) all accounts payable, Expenses and Indebtedness of Parent or its Affiliates (other than accounts payable of any Transferred Subsidiary included Seller in, under or pursuant to Intercompany Obligations, except as provided in the calculation of Net Working Capital and Indebtedness of any Transferred SubsidiarySection 2.3(g);
(vil) any and all intercompany payables and loans between Parent Liabilities of any Seller under any collective bargaining agreement or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and agreement with any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating to or arising out of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xi) any Liability related to or arising out of the Restructuring;
(xii) without limiting the rights and obligations of the parties under Article VII, any Liability for Taxes relating to the Purchased Assets with respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01labor union; and
(xiiim) any Liability Liabilities arising out from the operation of any successor liability Laws, including, without limitation, “bulk sales” statutes, to the extent that non-compliance therewith or the failure to advertise obtain necessary clearances would subject the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 Purchaser or the Purchased Assets to the claims of any creditors of any of the Insolvency Act (South Africa)Sellers other than with respect to the Assumed Liabilities, or would subject any of the Purchased Assets to any Liens or other restrictions, other than Liens arising in connection with the Assumed Liabilities. For the avoidance of doubt, except as expressly noted above, none of the Excluded Liabilities shall be included as Assumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medical Staffing Network Holdings Inc)
Excluded Liabilities. Notwithstanding anything in Section 2.02(a) or Section 2.02(b) to It is expressly agreed that the contrary, as applicable ------------------------- Seller will retain and Newco shall not assume any of the Closingfollowing liabilities (the "Excluded Liabilities"), in -------------------- 6 each case, excluding liabilities of the Delayed Closing or any applicable Later Closingcategories described below of the ▇▇▇▇▇▇ Subs (other than Newco), Parent or its Affiliates shall retain or assume, as applicable, and all of which shall be responsible for paying, performing and discharging when due, and none of Buyer or its Affiliates shall assume or have any responsibility for, transferred in the following Liabilities of Parent or its Affiliates (the “Excluded Liabilities”):Stock Purchase:
(ia) those Liabilities not relating to or all obligations and liabilities predominantly arising out of the Business or the Purchased Assets (in the case of those Liabilities shared by the Business and the Medical Device Business, only that portion of such Liabilities not attributable relating to the Business shall be excluded hereby)Excluded Assets;
(iib) those Liabilities relating to all debts, liabilities, obligations, damages, costs or arising from any Parent Plan or for which Parent or its Affiliates other expenses of the Sellers that are responsible pursuant to Article VI but excluding Employment Related Liabilities in respect of any Continuing Employee which are assumed by operation of Law by the Buyer or its Affiliates pursuant not related predominantly to the Transfer Regulations (and which, for the avoidance of doubt, are intended to be included within the definition of Indebtedness);
(iii) those Liabilities set forth on Section 2.02(c)(iii) of the Seller Disclosure Schedule;
(iv) those Liabilities relating to Assets or arising out of product warranty obligations (express or implied) and product liability claims (other than product or packaging complaints that do not arise out of injury to person or property and other than product recalls) for products of the Business sold prior are not predominantly related to the ClosingBusiness;
(vc) all accounts payable, Expenses and Indebtedness Taxes of Parent or its Affiliates attributable to the Assets for any taxable period or portion thereof ending on or before the Closing Date (other than accounts payable of Taxes assumed by Buyer pursuant to this Agreement) including, without limitation, any Transferred Subsidiary included in the calculation of Net Working Capital and Indebtedness of any Transferred Subsidiary);
(vi) all intercompany payables and loans between Parent or any of its Affiliates (other than the Transferred Subsidiaries), on the one hand, and any Affiliates of Parent (other than the Transferred Subsidiaries), on the other hand;
(vii) (A) all obligations of Parent or its Affiliates to any broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commissions relating to the transactions contemplated by this Agreement and (B) any other fees or expenses for which Parent or its Affiliates are expressly responsible for hereunder;
(viii) all Liabilities relating to any confidentiality, non-solicitation or similar agreements entered into by Parent or any of its Affiliates or its or their Representatives in connection with or relating to an Acquisition Proposal;
(ix) all Liabilities arising from or relating to any Actions involving Parent or any of its directors or officers relating such Taxes attributable to or arising out resulting from the sale, disposition or other transfer of this Agreement or the transactions contemplated hereby;
(x) any Liability to the extent it relates to or arises out of any Excluded Asset or is not primarily related to the Business or the Purchased Assets;
(xid) all obligations and liabilities of BFC or its affiliates retained pursuant to Section 7.7 hereof;
(e) any Liability related other obligations and liabilities for which the Sellers have assumed responsibility pursuant to this Agreement;
(f) all debts, liabilities or obligations arising out of the Restructuring;
or related to any operation or business (xiiincluding divested operations) without limiting the rights and obligations of the parties under Article VIISellers other than the Business, other than (i) obligations and liabilities of BFC or its affiliates assumed by Buyer pursuant to Section 7.7 and (ii) obligations or liabilities for workers' compensation claims of Business Employees who were employed at any Liability of the facilities listed on Schedule 4.13(b)(i)-1; --------------------- (g) all obligations and liabilities of Sellers or the Business for Taxes relating to the Purchased Assets with borrowed money or in respect to any Pre-Closing Tax Period, determined in accordance with the principles of Section 7.01borrowed money; and
(xiii) any Liability arising out of the failure to advertise the transactions contemplated by this Agreement by Halyard Health South Africa (Pty) Ltd. under Section 34 of the Insolvency Act (South Africa).
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (New World Pasta Co)