Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities: (a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement; (b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints; (c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1; (d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities; (e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand; (f) any 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; (g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date; (h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts; (i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date; (j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement); (k) any Liabilities of the Seller for Indebtedness; (l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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; (m) 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; (n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents; (o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date; (p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement; (q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and (r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bell Industries Inc /New/)
Excluded Liabilities. Purchaser will Except for the Assumed Liabilities and the obligation to pay the Release Amount pursuant to Section 2.1, the Joint Venture shall not assume, or nor shall it be liable forfor and under no circumstance shall the Joint Venture be obligated to pay or assume, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities and none of the Assets shall be referred or become liable for or subject to as any obligations or liabilities of Sellers (collectively, the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each ”) including any of the following Liabilitiesobligations or liabilities of Sellers:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement medical malpractice or the negotiation and consummation of the transactions contemplated by this Agreementgeneral liability claims;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring relating to the ownership or use of the Assets prior to Effective Time, whether (in any case) fixed or on contingent, recorded or unrecorded, known or unknown, currently existing or hereafter arising, and whether or not set forth or described in the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsSchedules;
(c) any and all Liabilities debt of Seller for the provision or claim against Sellers or any one or more of health plan continuation coverage in accordance with the requirements its affiliates, or any obligation of COBRA and Sections 601 through 608 Sellers or any one or more of ERISA its affiliates to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1repay borrowed money;
(d) any and all Liabilities owed to, claim against or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or obligation of any nature whatsoever relating to any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesExcluded Assets;
(e) any and all Liabilities liability under any intercompany loanspension or other benefit plan of Sellers, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on administrative costs associated with such benefit plans arising prior to the other handEffective Time;
(f) any and all Liabilities liability relating to litigation Sellers’ Cost Reports (i) involving the Businessas hereinafter defined), the Purchased Assets or Seller and existing as of the Closing Dateincluding terminating cost reports, or (ii) other Medicare, Medicaid or TRICARE claims with respect to periods ending prior to the extent Effective Time, whether arising out of in connection with a “self report” or resulting from the Excluded Assets or Excluded Liabilitiesotherwise;
(g) any and all Liabilities of Seller arising by reason of liability for violating any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, Legal Requirements to the extent such Liability results arising from acts or arises out of events, facts or circumstances occurring or existing on or omissions prior to the Closing DateEffective Time, including those pertaining to Medicare and Medicaid fraud or abuse and federal and state physician anti-self-referral laws;
(h) any liability under Sellers’ provider agreements with Government Programs or other third party payors to the extent arising from acts or omissions prior to the Effective Time, including, but not limited to, any liability for amounts paid to the Sellers in excess of the maximum “caps” allowed pursuant to the limitation on payments for hospice services described in 42 U.S.C. §1395f and all Liabilities relating to or arising out the applicable Medicare regulations (“Medicare Cap Liability”) and the repayment of Excluded Assets, including Excluded Contractsany alleged overpayments;
(i) any liability and all Liabilities obligation for Taxes (other than any those taken into account in the return by calculation of Net Working Capital), whether or not accrued, assessed or currently due and payable, (i) of Sellers, whether or not it relates to the Assets or the Business, or (ii) related to the ownership or operation of the Assets or the Business for any customer of Seller of products sold taxable period (or distributed by Seller portion thereof) ending on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DateEffective Time;
(j) any and all Taxes liability arising out of any Environmental Claim resulting from or with respect to the Purchased Assets or the operation conduct of the Business that are incurred by Sellers, the basis of which existed in whole or attributable to any period, or any portion of any period, ending on or prior to in part at the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);Effective Time; and
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller liability set forth on or prior to the Closing Date;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerSchedule 2.4(k).
Appears in 1 contract
Sources: Contribution Agreement
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknownshall hereafter pay, absoluteperform, contingent, liquidated or unliquidated, due or to become satisfy and discharge when due, all Liabilities other than Assumed Liabilities, and whether claims Buyer does not assume, and expressly disclaims responsibility for, any debts, liabilities, obligations or commitments of Seller or any other party of any kind or nature whatsoever with respect thereto are asserted to the Transferred Assets arising, incurred or accruing on, before or after the Closing, except Assumed Liabilities which Buyer specifically assumes under this Agreement (“Excluded Liabilities”). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of the Excluded Assets, including Excluded ContractsAssets other than the Assumed Liabilities;
(iii) any and all Liabilities for the return by arising out of any customer of Seller of products sold transaction or distributed obligation incurred by Seller on or prior after the Closing Date, except for Liabilities arising out of or related to the Transferred Assets for the period following the Closing Date Date;
(iii) All obligations and liability to any of its current or for a warranty claim for any product or service soldformer employees, distributed or performedincluding but not limited to, as employee salaries, benefits, accrued and unpaid vacation related to the case may be, by Seller period on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to before the Closing Date;
(jiv) all liabilities and obligations for taxes of any kind, including without limitation, Federal, state and all Taxes arising from or with respect local taxes, income, sales and use, ad valorem duties and assessments, FICA, contributions and profit sharing deductions relating to the Purchased Transferred Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to before the 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 Assets (except for Transfer Taxes which shall be paid pursuant to this Agreement (except, in any case, as otherwise provided in this AgreementSection 12.2);; and
(kv) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees expenses or agents;
(o) any and all Liabilities of the Seller fees incident to or arising out of the injury to negotiation, preparation, approval or death authorization 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 this Agreement and the consummation of the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerTransaction.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer shall not assume, assume or be liable forobligated to pay, perform or otherwise discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all liability or obligation of which Seller shall retain and remain liable for (whether such Excluded Liabilities are any Seller, direct or indirect, known or unknown, absolute, absolute or contingent, liquidated or unliquidatednot expressly assumed by Buyer pursuant to the Instrument of Assumption (all such liabilities and obligations not being assumed being herein called the "Excluded Liabilities") and, due or notwithstanding anything to become duethe contrary in SECTION 2.3, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each none of the following Liabilitiesshall be Assumed Liabilities for purposes of this Agreement:
(a) any and all Liabilities liabilities in respect of and/or on behalf of Taxes for which any Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreementis liable pursuant to SECTION 8.3;
(b) any payables and all employee-related Liabilities other liabilities or obligations of the Divisions to any Seller accrued or arising out any of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintstheir respective Affiliates;
(c) any costs and all Liabilities expenses incurred by any Seller incident to its negotiation and preparation of Seller for the provision of health plan continuation coverage in accordance this Agreement and its performance and compliance with the requirements of COBRA agreements and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1conditions contained herein;
(d) any and all Liabilities owed to, liabilities or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or obligations in respect of any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesExcluded Assets;
(e) any and all Liabilities under any intercompany loansliabilities in respect of the lawsuits, accounts claims, suits, proceedings or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handinvestigations set forth in SCHEDULE 5.22;
(f) accrued liabilities of any kind, including accrued payroll, accrued expenses 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 Liabilitiesaccrued sales tax liabilities;
(g) any liabilities and all Liabilities of Seller obligations related to, or arising by reason from (i) the occupancy, operation, use or control of any violation of the Business Property prior to the Closing Date or (ii) the operation of the Business prior to the Closing Date, in each case incurred or imposed by any Environmental Law, including liabilities and obligations related to, or arising from, any Release of any Law Contaminant on, at or any requirement of any Governmental Bodyfrom (A) the Business Property, including all Liabilities arising fromfacilities, related to improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder, or any conditions whatsoever on, under or in connection with FCC enforcement actionsthe vicinity of such real property, in each case, case prior to the extent such Liability results from Closing Date or arises out of events, facts (B) any real property or circumstances occurring or existing on or facility owned by a third Person to which Contaminants generated by the Business were sent prior to the Closing Date;
(h) any and all Liabilities product liability or claims for injury to person or property, regardless of when made or asserted, relating to products distributed or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return sold by either Division or services performed by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(i) obligations and liabilities relating to the ▇▇▇▇▇▇'▇ relationship;
(j) any and all Taxes arising from the systems contracts, agreements or with respect commitments (other than those related exclusively or primarily to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this AgreementChicago Division);
(k) fees or commissions of any Liabilities of the Seller for Indebtednessbroker, finder, financial advisor or intermediary, including ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation;
(l) any and all Liabilities of Seller under any Contract, other than as set forth in SECTION 2.3(d) and (e), employee severance, stay bonuses and other employee obligations and liabilities to any current or former employees of the Purchased Contracts, and 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 DateBusiness;
(m) any and all Liabilities of Seller arising by reason current payables of any violation or alleged violation of any Law or any requirement of any Governmental Body on or prior to the Closing Datekind;
(n) any obligations and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior liabilities relating to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;Ogilvy relationship; and
(o) obligations and liabilities relating to trucks used in the Maryland Division, including any and all Liabilities of the Seller arising out of the injury to equipment located therein 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Selleraffixed thereto.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” all of which ”). Seller shall retain (and remain liable for (whether such the Stockholders shall cause Seller to), cause each of its Affiliates to pay, and pay and satisfy as and when due all Excluded Liabilities are known or unknownwhich each is respectively obligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but shall not be limited to, each of the following LiabilitiesLiabilities of Seller or Stockholders or any Affiliate:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including the fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of or relating to the Business for any period or the negotiation and Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities Agreement or that are the responsibility of Seller accrued pursuant to Section 6.09; or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, other Taxes of any kind or description (iv) withholdings, (v) charges including any Liability for Taxes that becomes a Liability of unfair labor practices, Buyer under any common law doctrine of de facto merger or (vi) discrimination complaintstransferee or successor liability or otherwise by operation of contract or Law);
(c) any and all Liabilities relating to or arising out of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Excluded Assets;
(d) any and all Liabilities owed to, in respect of any pending or claims threatened Action arising out of, Seller’s creditors, whether arising before relating to or after otherwise in respect of the Closing Date, which may be asserted against Purchaser operation of the Business or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property regardless of the basis therefore and whether or not such claim arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller;
(g) any Liabilities arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(h) any and all Liabilities relating to for any present or arising out former employees, officers, directors, retirees, independent contractors or consultants of Excluded AssetsSeller, including Excluded Contractsany Liabilities associated with any claims for wages or other benefits, commissions, bonuses, expense reimbursement, paid sick leave, accrued vacation or other paid time off, workers’ compensation, severance, retention, termination or other payments;
(i) any and all Environmental Claims, or Liabilities for under Environmental Laws, to the return by any customer extent arising out of Seller of products sold or distributed by Seller relating to facts, circumstances or conditions existing on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior otherwise to the Closing Date based on extent arising out of any express warranty actions or implied warranty arising due to the statements or conduct omissions of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation trade accounts payable of Seller not otherwise set forth on Section 2.03(a) of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Disclosure Schedules;
(k) any Liabilities relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by Sellers’ customers to Seller for Indebtednesson or before the Closing Date; (ii) did not arise in the ordinary course of the Business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(l) any and all Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 7.02 as Seller under any Contract, other than the Purchased Contracts, and 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 DateIndemnitees;
(m) any Liabilities under any other Contract, including Intellectual Property Agreements, (i) which are not validly and all effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by Seller arising by reason of any violation or alleged violation of any Law or any requirement of any Governmental Body on or such Contracts prior to the Closing Date;
(n) any and any Liabilities for the return by any customer associated with debt, loans or credit facilities of Seller of products sold or distributed by Seller on or prior and/or the Business owing to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;financial institutions; and
(o) any and all Liabilities of the Seller arising out of, in respect of or in connection with 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 failure by Seller or any other legal of its Affiliates to comply with any Law 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerGovernmental Order.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding Section 2.2.1, Buyer shall not assume, pay or be liable fordischarge any of the following Liabilities of the Company or its Subsidiaries (collectively, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:”):
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries Liabilities for amounts due or that may become due to Medicare, Medicaid or any other government health care reimbursement or Government Program contractor or other Governmental Entity with authority to enforce laws and wagesregulations applicable to Government Programs, (ii) accrued vacation and sick paye.g., (iii) accrued payroll Taxesthe U.S. Department of Justice, (iv) withholdings, (v) charges on account of unfair labor practicesoverpayments or payment adjustments, or (vi) discrimination complaints;
(c) any other form of Medicare or other government health care reimbursement recapture, adjustment or investigation whatsoever, including fines, penalties and all Liabilities Losses, exclusively in respect of Seller services performed and products sold by the Company and its Subsidiaries and any legal predecessor thereto before the Closing and billed to a Government Program; provided, that, for the provision avoidance of health plan continuation coverage in accordance doubt, Liabilities associated with the requirements of COBRA Medicare Advantage, Managed Medicaid and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or Medicare Part D shall be treated as Assumed Liabilities and not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(gii) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing DateTransaction-Related Costs;
(hiii) any and all Liabilities relating related to option or arising out of Excluded Assets, including Excluded Contractsother share-based compensation vesting;
(iiv) any fees payable under the KRG Management Agreement and all Liabilities for any obligations under notes payable owed by the return by Company or any customer of Seller its Subsidiaries to KRG or any of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Dateits Affiliates;
(jv) any and all Taxes arising from accounts payable that have been outstanding for ninety (90) days or with respect to more (other than accounts payable reflected in the Purchased Assets or the operation calculation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this AgreementNet Working Capital);
(kvi) any Liabilities of the Seller for IndebtednessClosing Payoff Debt;
(lvii) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinintercompany payables; and
(rviii) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to liability or obligation of the contraryCompany or any of its Subsidiaries, Purchaser is assuming only or any member of any consolidated, affiliated, combined or unitary group of which the Assumed Liabilities and is not assuming Company or any other Liability of Seller or its Subsidiaries (is or any predecessor owner of all or part of has been a member, for Taxes; provided, that Transfer Taxes incurred in connection with the Business) of whatever nature. All such other Liabilities transactions contemplated hereby and Apportioned Obligations shall be retained by paid in the manner set forth in Sections 9.9.1 and remain Liabilities and obligations of Seller9.9.2 hereof.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.3, the Buyers shall not assumeassume the following Liabilities (collectively, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as the “Excluded Liabilities,” all of ”), which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each exclusive responsibility of the following LiabilitiesSeller Parties or their Affiliates:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this AgreementRetained Environmental Liabilities;
(b) any Liability of the Seller Parties or their Affiliates and all employee-related Liabilities predecessors in respect of Seller accrued or otherwise arising out from the Excluded Assets, except to the extent caused by the acts or omissions of actionsthe Buyers or the Buyers’ Representatives or by the Buyers’ ownership, omissions lease, maintenance or events occurring prior to or on operation of the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsAcquired Assets;
(c) any Liability of the Seller Parties or their Affiliates and all Liabilities predecessors arising from the execution, delivery or performance of Seller for this Agreement or any Ancillary Agreement or the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether transactions contemplated hereby or not such employees accept employment with Purchaser pursuant to Section 8.1thereby;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any Liability of the Purchased Assets pursuant Seller Parties or their Affiliates and predecessors under contracts or Leases which are not Assumed Contracts, except to any applicable bulk salesthe extent caused by the acts or omissions of the Buyer or the Buyers’ Representatives or by the Buyers’ ownership, bulk transfer lease, maintenance or similar laws and which do not otherwise constitute Assumed Liabilitiesoperation of the Acquired Assets;
(e) any Liability of the Seller Parties or their Affiliates and all Liabilities under predecessors for any intercompany loans, accounts fines or Contracts between the Business, on the one hand, and Seller or penalties imposed by a Governmental Entity resulting from any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets investigation or Seller and existing as of proceeding by a Governmental Entity pending on or prior to the Closing Date, Date or (ii) to acts or omissions of the extent arising out of Seller Parties or resulting from the Excluded Assets or Excluded Liabilities;
(g) any their Affiliates and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing predecessors on or prior to the Closing Date;
(f) any Liability in respect of Taxes attributable to the Acquired Assets for taxable periods, or portions thereof, ending on or before the Closing Date (as prorated under Section 3.4(a)(i) for Taxes described therein), except for Transfer Taxes pursuant to Section 7.9(a);
(g) any Liability of the Seller Parties or their Affiliates arising from the breach or default by the Seller Parties or their Affiliates, prior to the Closing Date, of any Assumed Contracts or any other contract, license, agreement or personal property lease entered into by any of the Seller Parties or their Affiliates with respect to the Purchased Assets;
(h) any Liability of the Seller Parties or their Affiliates and all Liabilities predecessors relating to any cause of action pending, or arising out of Excluded Assetsthreatened in writing, including Excluded Contractsprior to the Closing Date against the Seller Parties or their Affiliates and predecessors or their assets;
(i) any and Liabilities relating to any matters identified on Schedule 2.4(i); and
(j) all Liabilities of the Seller Parties for the return by any customer of Seller of products sold or distributed by Seller Indebtedness incurred on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cincinnati Gas & Electric Co)
Excluded Liabilities. Purchaser will not assumeNotwithstanding anything to the contrary in this Agreement, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not the Assumed Liabilities shall be referred to as not include the following liabilities (the “Excluded Liabilities,” all of ”), which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each obligations of the following LiabilitiesSellers:
(ai) all accounts payable and accrued liabilities of the Sellers and all other indebtedness of the Sellers;
(ii) all product returns and Warranty Obligations relating to Business Products sold by Sellers which occur prior to the date which is 90 days after Closing;
(iii) any liability under any Assigned Contract that arises prior to the Closing or arises after the Closing but that arises out of or relates to a breach that occurred prior to Closing;
(iv) other than as set forth on Schedule 1.1(d)(iv) hereto, any liability arising under an Environmental Law in connection with the operation of the Business prior to Closing or the Sellers’ leasing, ownership or operation of real property;
(v) any liability under any Business Benefit Plan;
(vi) any liability arising out of or relating to the Sellers’ disposition of an application for employment, the employment of any employee (including without limitation any accrued vacation time or unpaid salary as of the Closing) or the termination of the employment of any employee, whether or not the affected employee is hired by the Buyer;
(vii) all liabilities and obligations arising out of or relating to the Excluded Assets;
(viii) all Liabilities liabilities and obligations for any Taxes for which any of and/or on behalf the Sellers or Affiliates of the Sellers are liable;
(ix) any liability arising under the escheat laws or any other laws of any jurisdiction relating to abandoned property;
(x) any liability to distribute to any of the Sellers’ shareholders or otherwise apply all or any part of the consideration received by the Sellers under this Agreement;
(xi) any liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of the Sellers;
(xii) any liability arising out of any litigation or claims (i) pending as of the Closing or (ii) commenced after the Closing and arising out of or relating to any occurrence, happening or situation existing prior to the Closing, including without limitation the litigation and claims listed in Section 2.10(b) and (e) and Section 2.13 of the Disclosure Schedule;
(xiii) any liability arising out of or resulting from the Sellers’ compliance or non-compliance with any law or Permit;
(xiv) all Intercompany Liabilities;
(xv) all liabilities and obligations of any Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in including without limitation any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller fees for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 financial advisors engaged by or on behalf of the Seller, in each case, on or prior to the Closing DateSellers);
(pxvi) any all liabilities and all Liabilities of Seller for severance pay or the like with respect to any employee obligations of the Seller that does not accept employment with Sellers under this Agreement and the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinAncillary Agreements; and
(rxvii) all Excluded Pre-Petition Liabilities. Notwithstanding liabilities of any provisions in this Agreement Seller arising out of or relating to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerforegoing.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assumeNotwithstanding anything else contained herein to the contrary, or be liable for, any all liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all and obligations of which Seller shall retain and remain liable for Sellers (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due contingent or to become duefixed) other than the Assumed Liabilities (the “Excluded Liabilities”), shall remain the liabilities and obligations of Sellers, and shall not be assumed by Purchaser pursuant hereto (regardless of whether claims with respect thereto any such liabilities or obligations are asserted before or after the Closingdisclosed in this Agreement). Each Seller hereby agrees that it shall fully and timely pay, perform and discharge all of the Excluded Liabilities shall include, but not be limited to, each in accordance with their respective terms. Without limiting the generality of the following Liabilitiesforegoing, Excluded Liabilities of Sellers include the following:
(a) any liability or obligation of any Seller arising under any Assumed Contract, Lease, License or other agreement as a result of any act or omission occurring prior to the Closing Date;
(b) any liability or obligation related to the Excluded Assets;
(c) any liability or obligation for any Taxes owed by any Seller or arising in connection with the consummation of this Agreement and all Liabilities the transactions contemplated hereby, unless otherwise provided in this Agreement;
(d) any liability or obligation of and/or on behalf of Seller Sellers for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreementhereby;
(be) any and all employee-related Liabilities liability or obligation of Seller accrued Sellers under or in connection with any action, suit, proceeding or investigation arising out of actionsacts, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries but not limited to, claims or actions pursuant to any statutes and wagesregulations with respect to short-term loans, (ii) accrued vacation usury statutes, the Equal Credit Opportunity Act and sick payRegulation B promulgated thereunder, (iii) accrued payroll Taxesthe federal Truth-in-Lending Act and Regulation Z promulgated thereunder, (iv) withholdingsthe federal Fair Credit Reporting Act, (v) charges of unfair labor practicesthe Federal Trade Commission’s Rule on Credit Practices, and any other federal, foreign, state or local statute, law, ruling, or (vi) discrimination complaints;
(c) ordinance; provided, however, that all such actions, proceedings, suits, and investigations arising out of 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 to employees of Selleracts, regardless of whether omissions or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before events occurring on or after the Closing Date, which may be asserted against Purchaser Date relating to the Acquired Assets or the Business or any activity, form or aspect thereof shall be the sole obligations of the Purchased Assets pursuant to any applicable bulk salesPurchaser, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handexcept as set forth in Section 3.11(a)(ii);
(f) any and all Liabilities liability or obligation of Sellers relating to litigation (i) involving the Businessany breach of contract, the Purchased Assets breach of warranty, tort, infringement or Seller and existing as violation of law arising out of acts, omissions or events occurring prior to the Closing Date, or (ii) to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilitiesexcept as set forth in Schedule 1.4(f);
(g) any liability or obligation of Sellers to any employee as a result of this transaction and all Liabilities of Seller arising by reason of any violation of any Law liability or any requirement of any Governmental Body, including all Liabilities arising from, related to obligation under or in connection with FCC enforcement actionsany employee benefit plan, policy or practice, or any employment agreement, collective bargaining agreement or severance agreement except as set forth in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing DateSchedule 1.4(g);
(h) any and all Liabilities relating liability or obligation of Sellers to indemnify any person by reason of the fact that such person was an employee, officer, director, manager or arising out agent of Excluded Assets, including Excluded Contracts;Sellers (or such person was serving in any such capacity of any other entity at the request of any Seller) prior to the Closing Date; and
(i) any and all Liabilities for the return by any customer of Seller of products sold liability or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable obligation relating to any periodloan, line of credit, guaranty or any portion other indebtedness of any period, ending on or prior to the Closing Date, and income and similar Taxes, of a type Sellers not described in Section 7.11, that are imposed as a result of the sale of the Purchased Assets assumed by Purchaser pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerSection 1.3.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assume, Under no circumstance shall Buyer assume or be obligated to pay, and none of the Assets shall be or become liable forfor or subject to, any liabilities of the Excluded Liabilities, including the following liabilities, which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each liabilities of the following LiabilitiesSellers:
(a) any and all Liabilities of and/or liabilities accrued on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of Closing Balance Sheet other than the transactions contemplated by this AgreementAssumed Liabilities;
(b) any and all employee-related Liabilities of Seller accrued liabilities or arising out of actions, omissions or events occurring prior to or obligations for items characterized as deferred income taxes on the March 31 Balance Sheet and the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges Balance Sheet or Taxes resulting from the consummation of unfair labor practices, or (vi) discrimination complaintsthe Transaction;
(c) liabilities or obligations associated with 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Excluded Assets;
(d) liabilities or obligations associated with any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after indebtedness of Seller for borrowed money not included in the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any liabilities or obligations under the Assumed Contracts that are not Assumed Liabilities and all Liabilities liabilities or obligations arising under any intercompany loans, accounts the Rejected Contracts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handCompleted Contracts;
(f) any liabilities or obligations arising out of or in connection with claims, litigation and all Liabilities relating proceedings (whether instituted prior to litigation (ior after Closing) involving the Businessfor acts or omissions which occurred, the Purchased Assets or Seller and existing as of arise from events that occurred, prior to the Closing Date, including such liabilities or obligations as are reflected on the March 31 Balance Sheet and will be reflected on the Closing Balance Sheet;
(g) liabilities or obligations (i) to Sellers' employees (other than under the Employee Agreements), (ii) with respect to the Employee Benefit Plans and Other Plans, (iii) of Sellers to the Internal Revenue Service, PBGC or any other Governmental Authority relating to Sellers' employees, in each case arising from or relating to periods prior to Closing (whether or not triggered by the Transaction or the announcement thereof) except to the extent reflected on the Closing Balance Sheet;
(h) liabilities or obligations related to the ESOP, including, without limitation, those liabilities and obligations reflected on the Closing Balance Sheet;
(i) penalties, fines, settlements, interest, costs and expenses arising out of or incurred as a result of any actual or alleged violation by any of Sellers of any Legal Requirement;
(j) liabilities or obligations under the WARN Act, if any, arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities layoffs of Seller arising employees by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or Sellers prior to Closing and/or the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation consummation of the Business Transaction sufficient in the aggregate to require notice under the WARN Act, but not those that are incurred in or attributable to may arise from any period, or any portion layoffs of any period, ending on or prior to Hired Employees by Buyer after the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Closing;
(k) liabilities related to any Liabilities debtor in possession financing under Section 364(b), (c) or (d) of the Seller for IndebtednessBankruptcy Code;
(l) any all liabilities of Sellers for expenses (i) of the negotiation and all Liabilities preparation of Seller under any Contractthis Agreement, other than the Purchased Contracts, and 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 (ii) relating to the Closing Date;Transaction, (iii) of the filing and administration of the Bankruptcy Cases, in each case to the extent incurred by Sellers or any of them and including those related to legal counsel, accounting, brokerage and investment advisors fees and disbursements and (iv) any pending shareholder claim, litigation or proceeding; and
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 amounts paid by or on behalf of the SellerSellers to Jaco▇▇, in each case▇▇cluding, without limitation, any amounts paid by or on or prior behalf of Sellers pursuant to the Closing Date;
Jaco▇▇ ▇▇▇et Purchase Agreement (pincluding the Break-Up Fee (as defined therein) any and all Liabilities of Seller for severance pay the Expense Reimbursement (as defined therein)), the Jaco▇▇ ▇▇▇dit Agreement or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Jaco▇▇ ▇▇▇ Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Newco shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” ”). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all of which Seller shall retain and remain liable for (whether such Excluded Liabilities which they are known or unknown, absolute, contingent, liquidated or unliquidated, due or obligated to become due, pay and whether claims with respect thereto are asserted before or after the Closing)satisfy. The Excluded Liabilities shall include, but not be limited to, each of include the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf Seller based upon, arising out of Seller for costs and expenses or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement Agreement, the other Transaction Documents or the negotiation and consummation of the transactions contemplated by this Agreementhereby or thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: for (i) accrued salaries and wagesTaxes of Seller (or any stockholder or Affiliate of Seller), (ii) accrued vacation and sick payTaxes relating to the Business, the Contributed Assets or the Assumed Liabilities for any Pre-Closing Tax Period or (iii) accrued payroll Taxes, (iv) withholdings, (v) charges Taxes that arise out of unfair labor practices, the consummation of the transactions contemplated hereby or (vi) discrimination complaintsthat are the responsibility of Seller pursuant to Section 6.11;
(c) any and all Liabilities relating to or arising out of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Excluded Assets;
(d) any and all Liabilities owed to, in respect of any pending or claims threatened Action arising out of, Seller’s creditors, whether arising before relating to or after the Closing Date, which may be asserted against Purchaser or any otherwise in respect of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as operation of the Closing Date, Business or (ii) to the extent arising out of or resulting from the Excluded Contributed Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or Action relates to such operation prior to the Closing Date;
(he) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller arising under or in connection with the employment, or termination of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for employment of any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents employee prior to the Closing Date;
(f) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order;
(g) any Liabilities based upon, arising out of or with respect to any employee’s employment (or the termination of such employment) with, or any independent contractor’s engagement (or the termination of such engagement) by Seller that incurred prior to the consummation of the Closing;
(h) any Liabilities of Seller based upon, arising out of or with respect to: (i) any Environmental Law that occurred prior to the consummation of the Closing; (ii) any fine, penalty or other cost assessed by a Governmental Authority in connection with the violation of a Permit that accrued or arose prior to the consummation of the Closing or that arose out of the ownership, operation or use of the Contributed Assets or the Business prior to the consummation of the Closing; and (iii) any environmental exposures, injuries or accidents (including property damage, natural resource damage or personal injuries that may have resulted therefrom) that accrued or arose prior to the consummation of the Closing: (A) involving Hazardous Materials prior to the consummation of the Closing; or (B) that arose out of the ownership, operation or use of the Contributed Assets or the Business prior to the consummation of the Closing;
(i) any Liabilities of Seller based upon, arising out of or with respect to any product shipped, or product liability claim arising out of any fact occurring, prior to the consummation of the Closing;
(j) any and all Taxes Liabilities based upon, arising from under or with respect to the Purchased operation of the Business, or the operation or use of the Contributed Assets, in each case, prior to the consummation of the Closing (or which may be asserted against or imposed upon Buyer as a successor or transferee of Seller as an acquirer of the Contributed Assets or the operation Business or otherwise as a matter of the Business that are incurred in law) and any other obligation or attributable liability based upon, arising under or with respect to any period, events or any portion of any period, ending on conditions occurring at or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Closing;
(k) any Liabilities of based upon, arising under or with respect to product warranty reserves, extended warranties and other customary warranties related to the Seller for IndebtednessBusiness;
(l) any and all Liabilities based upon, arising under or with respect to the Excluded Assets or the ownership, operation or use of any of the businesses or assets of Seller under or any Contractof its Affiliates, other than the Purchased ContractsBusiness, and any and all Liabilities of Seller under any Contract whether before, at or Permit arising out of a breach or alleged breach thereof by Seller on or prior to after the Closing Date;Closing; and
(m) any and all Liabilities based upon, arising out of Seller arising or with respect to the Contributed Assets or the Business or the ownership, jurisdiction or use thereof by reason of any violation or alleged violation of Person at any Law or any requirement of any Governmental Body on or time prior to or as a result of the consummation of the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on which may be asserted against or prior to the Closing imposed upon Buyer as a successor or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct transferee of Seller or Seller’s employees or agents;
(o) any and all Liabilities as an acquirer of the Seller arising out of Contributed Assets or 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 Business or otherwise disposed as a matter of or services performed by or on behalf of the SellerLaw), in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only other than the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerLiabilities.
Appears in 1 contract
Excluded Liabilities. Purchaser will shall not assumeassume any liabilities, obligations or be liable for, any liabilities which are not commitments of the Seller relating to or arising out of the operation of the Business or the ownership of the Assets prior to the Closing Date other than the Assumed Liabilities. All such liabilities which are Notwithstanding anything to the contrary in this Agreement, Purchaser shall not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain assume or in any way become liable for any of the debts, liabilities, or obligations of any nature whatsoever (other than the Assumed Liabilities) relating to the Seller, the Business or the Assets, whether such Excluded Liabilities are accrued, absolute, contingent or otherwise, whether known or unknown, absolute, contingent, liquidated or unliquidated, whether due or to become due, whether related to the Business or the Assets and whether claims with respect thereto are asserted before disclosed on the Schedules attached hereto, and regardless of when or after by whom asserted(collectively referred to herein as the Closing). “Excluded Liabilities shall includeLiabilities”,) and, but for the avoidance of doubt and not be limited to, each in limitation of the following Liabilities:
(a) foregoing, Purchaser shall not assume any and all Liabilities of and/or on behalf the liabilities, obligations or commitments of Seller for costs that are described below (which shall also be Excluded Liabilities):
1. Any of the Seller’s Liabilities or obligations under this Agreement, the Schedules attached hereto and expenses incurred any other agreements entered into by the Seller in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) 2. any and all employee-related Liabilities of Seller accrued the Seller’s liabilities or obligations for expenses, fees or taxes incident to or arising out of actionsthe negotiation, omissions preparation, approval or events occurring prior to authorization of this Agreement or on the Closing Dateconsummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys, including, without limitation: (i) accrued salaries accountants’ and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsbrokerage fees);
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or 3. any of the Purchased Assets pursuant to Seller’s liabilities or obligations with the Social Security Administration, the Federal Unemployment Insurance, the United States Department of Treasury, the Puerto Rico Department of Treasury (“Departamento de Hacienda”), the Puerto Rico State Insurance Fund (“Fondo del Seguro del Estado”), the Puerto Rico Department of Labor and Human Resources and any applicable bulk salesother state or federal agency, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilitiesmunicipality of the Commonwealth of Puerto Rico;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or 4. any of its affiliates, on the other hand;
(f) Seller’s liabilities or obligations for any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets federal 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;
(g) Puerto Rico taxes for any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or period prior to the Closing Date;
(h) 5. any and all Liabilities liability or obligation under or with respect to any employment agreement, any employee benefit plan, any employee health, disability or other welfare plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its parents or affiliates, or with respect to which the Seller, parent or affiliate has any liability;
6. any of the Seller’s liabilities or obligations for vacation pay, sick pay, holiday pay, salary, bonuses, pension and/or retirement benefits, or other payments or liabilities arising at or before the Closing Date of any kind to any employees or current or former employee of the Seller;
7. any liability or obligation relating to workers’ compensation claims which were filed or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for presented by the return by any customer of Seller of products sold Seller’s employees at or distributed by Seller on or prior to before the Closing Date or for a warranty claim for any product which are filed or service sold, distributed or performed, as the case may be, by Seller on or prior to presented after the Closing Date based on any express warranty but relate to claims and/or injuries first arising at or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to before the Closing Date;
(j) 8. any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in Seller’s liabilities or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement obligations (except, in any case, as otherwise provided in this Agreement);
(kA) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) any and all Liabilities of Seller arising by reason of any violation or alleged violation of any Law law of any governmental entity or any requirement of any Governmental Body governmental entity, or (B) arising by reason of any breach or alleged breach by the Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree;
9. any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business at or before the Closing Date or any other conduct of the Seller, the Seller’s officers, directors, employees, consultants, agents or advisors at or prior to the Closing Date;
10. any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
11. any liabilities for premiums that may be due and payable to insurance companies for insurance written before the Closing Date, whether or not such premiums shall have been received by Seller in its capacity as general agent or authorized representative;
12. any liability, obligation or commitment to return or refund to an insurance company, any unearned commission on policy cancellations or reductions in policy premiums collected on or prior to the Closing Date;
(n) 13. any and any Liabilities for the return by any customer liabilities, obligations or commitments of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee statutory or contractual severance payment that may be due or payable to any of Seller’s employees on account of their termination of employment with Seller (whether or not employed by Purchaser) as a result of or in connection with or resulting from the sale of the Seller that does not accept employment with the Purchaser upon completion of the transaction Assets and other transactions contemplated by in this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments including but not limited to any director, officer liability that may be imposed or employee of asserted against the Seller for under Act No. 80 of May 30, 1976, as amended (the period prior to the Closing, except as otherwise expressly provided herein“Act 80 Severance Payments”; and
(r) all Excluded Pre-Petition Liabilities14. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller liabilities or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerSellers other than Assumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. Purchaser will Notwithstanding anything to the contrary herein (including, without limitation, Section 2.3), Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Liabilities of Sellers or any of their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities. All such liabilities which are not Assumed , including Liabilities shall be referred in respect of or relating to as the Acquired Assets to the extent arising prior to June 1, 2025 or related to the promotion or sale of the Products outside the Territory (the “Excluded Liabilities,” all ”), each of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known the Liability of Sellers or unknowntheir Affiliates. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities arising out of or relating to Sellers’ and/or on behalf their Affiliates’ ownership or operation of Seller for costs and expenses incurred in connection with this Agreement the Business or the negotiation and consummation of the transactions contemplated by this AgreementAcquired Assets prior to June 1, 2025;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of the Excluded Assets;
(c) all Liabilities to customers, suppliers or other Third Parties for Products, materials and services ordered prior to June 1, 2025, except those which are assumed pursuant to Section 2.3(c);
(d) all Retained Recall Liabilities;
(e) all Retained Return, Government Rebates and Chargeback Liabilities;
(f) all Liabilities related to or arising out of any Seller Taxes;
(g) all Liabilities arising, or to be paid or performed, prior to June 1, 2025, under the Acquired Contracts, including Excluded Contractsany amounts due and payable or obligations required to be performed or discharged under the Acquired Contracts prior to June 1, 2025, as well as any Liabilities relating to defaults or breaches thereunder occurring prior to June 1, 2025;
(h) all Liabilities arising out of or relating to any Action, regardless of when commenced or made, arising out of or relating to the Products or the Acquired Assets, to the extent relating to the period of time prior to June 1, 2025, except those certain expenses which are assumed pursuant to Section 2.3(c);
(i) any and all Liabilities for to any Governmental Authorities relating to the return by any customer Acquired Regulatory Approvals, to the extent arising prior to, or relating to the period of Seller of products sold or distributed by Seller on or time prior to the Closing Date or for a warranty claim for any product or service soldJune 1, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;2025; and
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation those Liabilities on Schedule 2.4(j) of the Business that are incurred in or attributable to any period, or any portion Seller Disclosure Schedule for outstanding invoices due and payable as of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding any other provision of this Agreement, or any other agreement or instrument to the contrary, Buyer shall not and does not assume, agree to pay, perform or be liable for, discharge or otherwise have any liabilities which are liability or responsibility for any Liability of any Seller or any other Person not Assumed Liabilities. All such liabilities which are not included in the Assumed Liabilities shall be referred to as “(collectively, the "Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Any 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditorswhich arise, whether arising before before, on or after the Closing Date, which may be asserted against Purchaser out of, or any of in connection with, the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesExcluded Assets;
(eii) any and all Any Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the BusinessAssumed Contracts, the Purchased Assets Equipment Leases 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each caseReal Property Leases, to the extent that the event giving rise to such Liability results from or arises out of events, facts or circumstances occurring or existing on or occurs prior to the Closing Date;
(hiii) Any Liabilities arising out of, or in connection with, any and all Liabilities relating to or Proceedings arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer operation of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents Business prior to the Closing Date;
(jiv) Any Liabilities arising out of or in connection with any indebtedness of Sellers or any of their Affiliates to their lenders or to their vendors of goods and services delivered or furnished to Sellers prior to Closing Date;
(v) Any Liabilities for income Taxes of Sellers and any other Taxes of Sellers, including, but not limited to, all Taxes attributable to, incurred in connection with or arising from or with respect to the Purchased Assets or out of the operation of the Business that including those which are incurred in not due or assessed until after the Closing Date but which are attributable to any period, period (or any portion of any period, thereof) ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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 before the Closing Date;
(mvi) any Any and all Liabilities relating to actions or inactions by any Seller in respect of actual or alleged violations of laws;
(vii) Any and all Liabilities arising from or relating to (i) any claim of employment discrimination, wrongful discharge or, except as specifically set forth in this Agreement, any other employment-related claim, or (ii) any Seller Benefit Plan or Seller Employee Agreement;
(viii) Any and all Liabilities arising by reason from any litigation, investigation or other proceeding pending or threatened in respect of any violation Seller and for any of its officers, directors, professionals, or alleged violation of agents in connection with any Law transaction or event occurring prior to the Closing or any requirement of the transactions contemplated hereby;
(ix) Any and all Liabilities incurred by any Governmental Body Seller on or prior to after the Closing Date;
(nx) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any Any and all Liabilities relating to Environmental Matters with respect to the Business or the Assets arising directly or indirectly from, or relating to, acts, omissions, conditions or releases, including, without limitation, the presence of the Seller 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 the Seller, in each caseHazardous Materials, on or prior to the Closing Date;; and
(pxi) any and all Liabilities of Seller for severance pay or the like with respect to any employee arising out of the Seller that does not accept employment with the Purchaser upon completion ownership of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee Assets and/or the operation of the Seller Business by Sellers or any other Person, including, without limitation, Liability for personal injury of customers or employees, but only to the period extent that the event giving rise to such Liability occurs prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser specifically shall not assume or pay or discharge or have any liability for any debts, liabilities, or obligations of any Seller or otherwise other than the Assumed Liabilities. Without limiting the foregoing, Purchaser will not assume, or be liable for, for any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
debts, liabilities or obligations (acontingent or otherwise) of any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitationSeller: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, including amounts which have or (vi) discrimination complaints;
(c) may be passed through to 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 to employees of Sellerby any lessor under any Ground Lease, regardless of whether any Seller has been invoiced for or not notified of such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one handamounts, and Seller whether such Taxes or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation amounts relate (i) involving in the Business, the Purchased case of Taxes that relate to any Assets transferred to Purchaser hereunder and arise out of periods on or Seller and existing as of before the Closing Date, or Date on which such Assets are transferred to Purchaser and (ii) in the case of all other Taxes of any Seller that relate to periods on, prior to or after such Closing; (ii) obligations under the extent arising Contracts and Permits that arise out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related relate to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or that occurred prior to the applicable Closing Date;
; (hiii) obligations relating to any Employee Benefit Plan ever maintained or contributed to by any Seller or its ERISA Affiliates, whether incurred before, on or after a Closing Date; (iv) any obligations relating to any Seller's employment of or termination of its employees, whether incurred before, on or after a Closing, including but not limited to obligations under the WARN Act or similar state laws; (v) Continuing Obligations at any time prior to, on, or after the applicable Closing Date; (vi) any liability or obligation of a Seller pertaining to the Excluded Assets; (vii) Managed Assets that become Replaced Assets, for the period between the Closing of such Managed Assets and the date on which such Managed Assets became Replaced Assets, except as expressly provided in the Management Agreement; (viii) any debt (contingent or otherwise) regardless of how incurred; and (ix) any and all Liabilities relating liabilities or obligations of any sort whatsoever regardless of how incurred that relate to Assets acquired and accepted by Purchaser at a Closing that arise or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return are incurred by any customer of Seller of products sold and/or relate to events, facts, or distributed by Seller circumstances that occur on or prior to before the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the applicable 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 for such Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, whether or not any such debt, liability or obligation is disclosed to Purchaser or is set forth on or prior any Schedule to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any . All of such excluded debts, liabilities and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions obligations specified in this Agreement Section 2.3(b) are collectively referred to herein as the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller"Excluded Liabilities".
Appears in 1 contract
Sources: Purchase and Sale Agreement (Sba Communications Corp)
Excluded Liabilities. Purchaser will not assumeOther than the liabilities expressly assumed by Buyer as described in Section 2.5 of this Agreement, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain continue to be responsible for all known and remain liable for unknown liabilities and obligations of the Business (whether such or any other business or operations of Seller), the Acquired Assets, the Excluded Assets or the Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each any of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for Seller’s costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this AgreementAgreement (the “Excluded Liabilities”), which Excluded Liabilities include:
(a) all liabilities or obligations relating to or arising out of the Existing Loans, to the extent such Liabilities arise out of or relate to facts, circumstances, actions, omissions and/or events (including soliciting, originating, administering or servicing any Existing Loan) occurring before the First Closing;
(b) any and all employee-related Liabilities of Seller accrued liabilities or obligations relating to or arising out of the Subsequent Loans, to the extent such Liabilities arise out of or relate to facts, circumstances, actions, omissions and/or events (including soliciting, originating, administering or events servicing any Subsequent Loan) occurring prior to or on before the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsapplicable Subsequent Loan Purchase Date for such Subsequent Loans;
(c) all liabilities or obligations relating to or arising out of (i) the conduct of the Business, or (ii) any and all Acquired Asset, to the extent such Liabilities arise out of Seller for or relate to facts, circumstances, actions, omissions and/or events occurring before the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Second Closing;
(d) all liabilities or obligations relating to or arising out of any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser Excluded Asset or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesExcluded Liability;
(e) any and all Liabilities under any intercompany loans, accounts liabilities or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities obligations relating to litigation or arising out of employment, consulting status, compensation (i) involving the Business, the Purchased Assets including any accrued but unpaid amounts or Seller and existing as of the Closing Dateentitlements), or termination of employment or consulting role of any (iiA) Acquired Employee to the extent arising out of or resulting from relating to facts, circumstances, actions, omissions and/or events occurring before or at the Excluded Assets Second Closing and (B) any current, former or Excluded Liabilities;prospective employees or service providers of the Business who are not Acquired Employees, whether arising prior to, as a result of, or after the Second Closing; and
(gf) any all liabilities and all Liabilities obligations (A) for Taxes of Seller arising and any of its Affiliates, whether by reason of any violation of any Law Treasury Regulation Section 1.1502-6 or any requirement of any Governmental Bodyotherwise, including all Liabilities arising fromany liability relating to, related to or in connection with FCC enforcement actionspertaining to, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assetsthe Existing Loans (or other assets acquired in the First Closing), including Excluded Contracts;
(i) the Business or the Acquired Assets with respect to income and other Taxes, including, but not limited to, any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or in connection with the consummation of the transaction contemplated hereby and (B) for Taxes with respect to the Purchased Existing Loans (or other assets acquired in the First Closing), Acquired Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded applicable Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerClosing Tax Period.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Primis Financial Corp.)
Excluded Liabilities. Purchaser will not assumeNotwithstanding any other provision of this Agreement to the contrary, neither the Buyer nor any Buyer Designee is assuming and the Seller shall pay, perform or be liable forotherwise satisfy (or cause the other Seller Entities to pay, perform or otherwise satisfy), any liabilities which are not Assumed Liabilities. All such liabilities which are not of the Seller Entities or the Acquired Entities other than the Assumed Liabilities shall be referred to as (and, for the avoidance of doubt, including those Assumed Liabilities assumed by virtue of the Buyer or a Buyer Designee acquiring the Acquired Entity Equity Interests) (the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown”), absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after including the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities liability (i) retained pursuant to Section 5.7 arising in respect of and/or on behalf or relating to Business Employees or (ii) arising under any Employee Plan irrespective of Seller for costs and expenses incurred in connection with this Agreement whether such liability arises prior to, on, or after the negotiation and consummation of Closing Date, except to the transactions contemplated extent assumed by this Agreementthe Buyer or any Buyer Designee pursuant to Section 5.7;
(b) any and all employee-related Liabilities Indebtedness outstanding as of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsDate to the extent it is not related to the Business;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Transaction Expenses;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Seller Environmental Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection liability with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;respect to:
(i) any and all Liabilities former Business Employee irrespective of whether such liability arises prior to, on, or after the Closing;
(ii) any current Business Employee who is not employed by the Buyer or an Affiliate of the Buyer (including any Acquired Entity) immediately following the Closing, irrespective of whether the liability arises prior to, on, or after the Closing;
(iii) any current or former employee or service provider of the Seller or an Affiliate of the Seller (other than any Acquired Entity) who is not a Business Employee, irrespective of whether the liability arises prior to, on, or after the Closing;
(iv) the Transferred Seller Entity Employees arising prior to or on the Closing, other than liabilities (A) arising for the return by any customer of Seller of products sold or distributed by Seller on or those payroll periods ended prior to the Measurement Time for vacation, holiday, sick time and other leave, and in each case, the employer portion of the payroll Taxes related thereto, to the extent that such amounts in this clause (A) are taken into account in Closing Date Net Working Capital as finally determined pursuant to Section 2.9, or for (B) assumed by the Buyer or a warranty claim for Buyer Designee (x) as required by Law with respect to any product Transferred Seller Entity Employee, and such liabilities as of the Measurement Time shall be taken into account as Indebtedness or service sold, distributed or performedClosing Net Working Capital, as the case may be, by and as finally determined pursuant to Section 2.9, (y) pursuant to Section 5.7 and/or (z) taken into account as Indebtedness as finally determined pursuant to Section 2.9; and
(v) any failure to comply with the obligation to notify, consult with or obtain the consent of any union, works council, employee representatives, or similar labor association or organization (A) required of the Seller on or any Affiliate of the Seller (including any Acquired Entity) prior to the Closing Date based on any express warranty or implied warranty arising due to and (B) required of the statements or conduct of Seller or Seller’s employees or agents prior to any Affiliate of the Closing DateSeller (excluding any Acquired Entity) after the Closing;
(jf) any and all Taxes liabilities relating to or arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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 Dateextent not related to the Business;
(mg) 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 Taxes to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, be paid by the Seller on or prior pursuant to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinArticle VI; and
(rh) all any liability or obligation relating to an Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerAsset.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Eaton Corp PLC)
Excluded Liabilities. Purchaser will Except as expressly set forth in Section 2.03, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” all of which ”). Seller shall retain pay and remain liable for (whether such satisfy in due course all Excluded Liabilities are known or unknownLiabilities. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of include the following Liabilitiesfollowing:
(a) any and all Liabilities liabilities or obligations arising out of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation relating to Seller’s ownership or operation of the transactions contemplated by this AgreementBusiness and the Purchased Assets prior to the Closing Date (including professional liability claims), except to the extent such liabilities or obligations are Assumed Liabilities;
(b) any and all employee-related Liabilities of Seller accrued liabilities or obligations relating to or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsExcluded Assets;
(c) any and all Liabilities of Seller liabilities or obligations for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving Taxes relating to 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Assumed Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, taxable period ending on or prior to the Closing Date, and income and similar Taxes, ; (ii) Taxes that arise out of a type not described the consummation of the transactions contemplated hereby (other than as set forth in Section 7.11, that are imposed as a result 6.11); and (iii) any other Taxes of the sale Seller or any stockholders or Affiliates of the Purchased Assets pursuant to this Agreement (except, in Seller for any case, as otherwise provided in this Agreement)taxable period;
(kd) any Environmental Claims, or Liabilities of under Environmental Laws, to the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit extent arising out of a breach or alleged breach thereof by Seller on relating to facts, circumstances or prior to the Closing Date;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller:
(e) any Liabilities for a warranty claim for any product of the Business relating or service soldarising from unfulfilled commitments, distributed quotations, purchase orders, customer orders or performed, as work orders that (i) do not constitute part of the case may be, Purchased Assets issued by the Business’ customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement:
(f) any Liabilities arising out of in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order;
(g) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, member, manager, employee or agent of Seller;
(h) any liabilities or obligations of Seller relating to or arising out of (i) the employment, or termination of employment, of any Employee prior to the Closing based on any express warranty, oral or writtenClosing, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(oii) any and all Liabilities of the Seller arising out of the injury to or death workers’ compensation claims of any person or animal or damage Employee which relate 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 the Seller, in each case, on or events occurring prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(ri) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability liabilities or obligations of Seller arising or its Subsidiaries (or any predecessor owner incurred in connection with the negotiation, preparation, investigation and performance of all or part this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including fees and expenses of the Business) of whatever nature. All such other Liabilities shall be retained by counsel, accountants, consultants, advisers and remain Liabilities and obligations of Sellerothers.
Appears in 1 contract
Sources: Asset Purchase Agreement (Comstock Holding Companies, Inc.)
Excluded Liabilities. Purchaser will (a) The Assumed Liabilities shall exclude and the Buyer shall not assume, assume or be liable forfor any Liabilities of Teaching Tech whatsoever, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall includeincluding, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may whether known, unknown, accrued or unaccrued, liquidated or unliquidated; (ii) Liabilities arising in connection with or related to the performance of the Services by Teaching Tech; (iii) Liabilities for the payment of Taxes; or (iv) Liabilities arising in connection with or relating to any violation by Teaching Tech or any of its members or employees of any Law.
(b) In addition to all Liabilities of Teaching Tech, the Assumed Liabilities shall exclude and the Buyer shall not assume or be asserted against Purchaser liable for any Liabilities of any of the Members or any of the Purchased Assets pursuant to following Liabilities of Delta, whether arising by Contract, under applicable Law or otherwise, as the same shall exist at the Closing Date (the Liabilities listed below, together with all the Liabilities of Teaching Tech, being hereinafter collectively the “Excluded Liabilities”):
(i) any applicable bulk sales, bulk transfer obligations and Liabilities of Delta arising under this Agreement or similar laws and which do not otherwise constitute Assumed Liabilitiesthe Ancillary Agreements;
(eii) any and all Liabilities under of Delta for expenses incurred in connection with the sale of the Assets pursuant hereto or other transactions contemplated hereby, including without limitation, any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handTransaction Expenses;
(fiii) all Liabilities of Delta not otherwise assumed by the Buyer pursuant to Section 2.02 hereof or arising out of any actions taken or omitted to be taken or any transactions entered into by Delta prior to the Closing Date, including, but not limited to, Liabilities of Delta arising under the terms of a product Manufacturing and distribution Contract made by and between Traditions Consulting, Inc. and Delta effective as of November 7, 2019 and an Intellectual Property licensing Contract made by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Traditions Consulting, Inc. and Delta effective as of February 7, 2020;
(iv) all Liabilities of Delta not otherwise assumed by the Buyer pursuant to Section 2.02 hereof arising as a result of or relating to any actions or events occurring after the Closing Date;
(v) all Liabilities of Delta arising under any agreement made between Delta and any bank or other financial institution and relating to the incurring by Delta of any Indebtedness to any such bank or financial institution;
(vi) all Liabilities of Delta relating to any Indebtedness of Delta, including: (A) any Liabilities of Delta with respect to any Customer Advances, which Customer Advances have not been included in the Final Statement of Customer Advances provided for by Section 3.03(c); and (B) any Liabilities of Delta arising under any notes payable, debt instruments, loan documents, indentures, debentures, guarantees or other written obligations issued to or held by any Person;
(vii) all Liabilities of Delta arising under the terms of that certain commercial lease, dated as of September 12, 2019 and made by and between Delta and ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings LLC relating to the rental by Delta of premises located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇;
(viii) all Liabilities of Delta arising under the terms of any Employee Plans;
(ix) all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of arising under warranties extended by Delta with respect to Products sold or Services performed on or prior to the Closing Date, or (ii) to the extent that such warranties have not been extended by Delta in the Ordinary Course of Business;
(x) all Liabilities of Delta arising out of any Action commenced, pending or resulting from threatened against Delta on or prior to the Excluded Assets or Excluded LiabilitiesClosing Date including Liabilities arising with respect to the Threatened Litigation and Liabilities arising with respect to the litigation matters described in Schedule 5.14;
(gxi) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including Delta relating to the Excluded Assets;
(xii) all Liabilities of Delta arising fromfrom claims or obligations with respect to workers' compensation, related product liability, tort liability or general liability, personal injury or property damage Claims arising with respect to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing occurrences on or prior to the Closing Date;
(hxiii) any and all Liabilities relating to of Delta for federal, state or arising out of Excluded Assets, including Excluded Contractslocal Tax Liabilities;
(ixiv) any and all Liabilities for arising before or after the return by Closing Date to the extent such Liabilities are attributable to any customer of Seller of products sold facts or distributed by Seller circumstances existing on or prior to the Closing Date, which facts or circumstances constitute a violation by Delta of any state, federal or local Environmental and Safety Laws;
(xv) all Liabilities arising before or after the Closing Date to the extent such Liabilities are attributable to any facts or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller circumstances existing on or prior to the Closing Date, which facts or circumstances constitute a violation by Delta of any Law;
(xvi) all Liabilities arising before or after the Closing Date based to the extent such Liabilities are attributable to any facts or circumstances existing on or prior to the Closing Date, which facts or circumstances constitute a violation by Delta of or an infringement by Delta of any express warranty patent, trademark or implied warranty arising other intellectual property rights of any Person;
(xvii) all Liabilities of Delta for any casualty, loss or accident (including, without limitation, destruction of or damage to property, personal injury or death) to the extent due to any facts or circumstances existing or arising: (i) prior to the statements Closing Date; or conduct (ii) after the Closing Date but based upon Products manufactured or sold or Services performed by Delta prior to the Closing Date wherein the casualty, loss or accident is a result of Seller the willful misconduct or Seller’s employees or agents gross negligence of either of the Sellers prior to the Closing Date;
(jxviii) all Liabilities arising in connection with or related to product returns (other than product returns made in connection with Product warranties issued by Delta in the Ordinary Course of Business) or any and all Taxes arising from or with respect recall relating to the Purchased Assets or the operation Products of the Business that are incurred in were manufactured or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof sold by Seller on or Delta prior to the Closing Date;
(mxix) any and all Liabilities arising as a result of Seller arising a default in the performance of or other breach by reason Delta of any violation or alleged violation Liabilities arising under the terms of any Law Permits or any requirement Contracts to the extent that any such default in performance or breach is a result of any Governmental Body on facts or circumstances existing or arising prior to the Closing Date;
(nxx) any Liabilities of Delta to provide any medical, dental, disability, accidental death and any Liabilities dismemberment, general or umbrella liability, life or other insurance coverage to or for the return by benefit of: (i) any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, Transferring Employee employed by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or Business immediately prior to the Closing Date; (ii) any former (whether by reason of retirement or other termination of employment) employee of the Business; or (iii) any of their respective dependents, including, but not limited to, any obligation to continue health insurance coverage for any former employee of the Business or his or her dependents as may be required by the applicable continuation coverage provisions of Subchapter I, Subtitle B, Part 6 of the Employee Retirement Income Security Act of 1974, as amended (hereinafter “ERISA”);
(pxxi) any and all Liabilities of Seller Delta to maintain for the benefit of or make any payments (including but not limited to any salary, accrued vacation or severance pay payments) or provide any benefits to: (A) any employee employed by the like Business immediately prior to the Closing Date; (B) any former (whether by reason of retirement or other termination of employment) employee of the Business; or (C) any of their respective dependents, under the terms of any bonus, retirement, pension, profit sharing, thrift, option, medical reimbursement, dependent care assistance, incentive compensation, deferred compensation, executive compensation, health insurance, retiree medical insurance, disability insurance, life insurance, or any other direct or indirect benefit plan or arrangement, whether formal or informal, maintained, contributed to or otherwise provided for by either of the Sellers;
(xxii) any Liabilities with respect to any employee employees of the Seller Delta that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinbecome Transferring Employees; and
(rxxiii) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement other Liabilities of Delta whether known, unknown, accrued, absolute, fixed or contingent which have not otherwise been assumed by the Buyer pursuant to the contrary, Purchaser is assuming only the Assumed Liabilities Assignment and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerAssumption Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gibraltar Industries, Inc.)
Excluded Liabilities. Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Purchaser will shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of the Selling Parties or any of their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” ”). Each Selling Party shall, and shall cause their Affiliates to, pay and satisfy in due course all of which Seller shall retain and remain liable for (whether such Excluded Liabilities which they are known or unknownobligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf any of Seller for costs and expenses the Selling Parties arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement or Agreement, the negotiation other Transaction Documents and consummation of the transactions contemplated by this Agreementhereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll for Excluded Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities relating to or arising out of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Excluded Assets;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser owing to Diamond or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilitiesits Affiliates;
(e) any and all Liabilities under in respect of any intercompany loanspending or threatened Action arising out of, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as otherwise in respect of the Closing Date, operation of the Business or (ii) to the extent arising out of or resulting from the Excluded Acquired Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(f) any Liabilities of the Companies arising under or in connection with any Employee Benefit Plan providing benefits to any present or former employee of the Companies;
(g) any Liabilities of the Companies for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Companies, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(h) any Actions, or Liabilities under Environmental and all Liabilities relating Safety Requirements, to or the extent arising out of Excluded Assetsor relating to facts, including Excluded Contractscircumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of any of the Companies;
(i) any and all Liabilities for trade accounts payable of the return by any customer of Seller of products sold or distributed by Seller on or prior Companies (i) to the Closing Date extent not accounted for on the Interim Balance Sheet; (ii) which constitute intercompany payables owing to Affiliates of any Selling Party; or for a warranty claim for any product or service sold, distributed or performed, as (iii) which did not arise in the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct ordinary course of Seller or Seller’s employees or agents prior to the Closing Datebusiness;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that are incurred in or attributable (i) do not constitute part of the Acquired Assets issued by the Business’ customers to any period, or any portion of any period, ending the Companies on or prior before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to the 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 Assets Purchaser pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of any of the Seller for IndebtednessCompanies (including with respect to any breach of fiduciary obligations by same);
(l) any and all Liabilities of Seller under the Excluded Contracts or any Contract, other than the Purchased Contracts, including licenses to Intellectual Property, (i) which are not validly and any effectively assigned to Purchaser pursuant to this Agreement; (ii) which do not conform to the representations and all warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities of Seller under any Contract or Permit arising arise out of or relate to a material breach or alleged breach thereof by Seller on or any of the Companies of such Contracts prior to the Closing DateClosing;
(m) any and all Liabilities associated with debt, loans or credit facilities of Seller the Selling Parties and/or the Business owing to financial institutions; and
(n) any Liabilities arising out of, in respect of or in connection with the failure by reason the Selling Parties or any of any violation or alleged violation of their Affiliates to comply with any Law or any requirement Governmental Order arising out of any Governmental Body on or operations prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Except for the Assumed Liabilities, the Purchaser will shall not assume, or be become liable forfor the payment or performance of, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as of any nature whatsoever, whether accrued or unaccrued, including, without limitation, the following Liabilities (collectively, the “Excluded Liabilities,” all ”) which shall remain Liabilities of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following LiabilitiesSellers:
(a) any and all Liabilities of and/or Sellers relating to or otherwise arising, whether before, on behalf of Seller for costs and expenses incurred or after the Closing, out of, or in connection with this Agreement or the negotiation and consummation with, any of the transactions contemplated by this AgreementExcluded Assets;
(b) any and all employee-related Liabilities of Seller accrued or arising out Sellers in respect of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsNon-Assumed Contracts;
(c) any and all except for 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser expressly assumed pursuant to Section 8.12.3 (which shall be Assumed Liabilities), all 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 owed torelating to any environmental or safety matter (including any Liability or obligation under any Environmental Law), arising out of or claims ofrelating to Sellers’ operation of the Business or Sellers’ leasing, Seller’s creditors, whether arising before ownership or after operation of any Leased Real Property on or prior to the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesDate no matter when raised;
(e) any and except to the extent that Liabilities are assumed pursuant to Section 2.3 (which shall be Assumed Liabilities), all Liabilities under any intercompany loansof Sellers in respect of Indebtedness, accounts whether or Contracts between not relating to the Business, on including all Liabilities arising under the one handFirst Lien Loan Documents (but excluding from this Section 2.4 (e), and Seller or any of its affiliates, on the other handDIP Loan);
(f) except to the extent that Liabilities are assumed pursuant to Section 2.3 (which shall be Assumed Liabilities), any and all Liabilities relating claims, demands, proceedings or causes of action subject to litigation (i) involving or covered by 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 LiabilitiesInsurance Policies;
(g) any and all Liabilities of Seller arising by reason of Accrued Employee Obligations, and any violation of any Law or any requirement of any Governmental Body, including and all Liabilities arising fromunder or otherwise in respect of (i) the Excluded Plans, related to and (ii) any other severance, retention, employment, change in control, pension, incentive, retirement, equity or in connection other compensation or benefit plan, program, policy, arrangement or agreement of or with FCC enforcement actionsany Seller or any of their respective Affiliates or ERISA Affiliates, in each case, with respect to any Employees; (iii) all accrued wages, compensation, payroll expenses (including payroll tax obligations), sick time, vacation time, and other paid time-off for Employees of Sellers, whether accruing prior to, on or after the extent such Petition Date, and regardless of whether pursuant to a written agreement, policy manual or otherwise; (iv) any Liability results from or arises arising out of events, facts or circumstances any employment related matter occurring or existing on or prior to the Closing; and (v) any Liability arising out of the Purchaser not offering employment to all Employees of Sellers as of Closing Datepursuant to Section 7.1 (the Liabilities and other obligations described in this clause (g), collectively, the “Accrued Employee Obligations”);
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded ContractsSellers for Taxes;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising payments due to the statements any equityholders of Sellers in respect of management or conduct of Seller other fees or Seller’s employees or agents prior to the Closing Dateotherwise;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending Liabilities set forth on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this AgreementSchedule 2.4(j);
(k) any Liabilities of Sellers in, under or pursuant to Intercompany Obligations (except for the Seller for Indebtednessitems described in Section 2.3(h) and (i));
(l) any and all Liabilities of Seller Sellers under any Contract, other than the Purchased Contracts, and collective bargaining agreement or any and all Liabilities of Seller under agreement with any Contract or Permit arising out of a breach or alleged breach thereof by Seller on or prior to the Closing Datelabor union;
(m) any all costs and expenses of professionals retained under Sections 327, 328, 363 or 1103 of the Bankruptcy Code and all Liabilities fees owed the United States Trustee under 28 U.S.C. § 1930 9(a) or otherwise, which along with the costs associated with the wind down of Seller arising by reason of any violation or alleged violation of any Law or any requirement of any Governmental Body on or prior the Chapter 11 Case, to the Closing Dateextent not previously paid, shall be paid out of and capped at the Wind Down Amount;
(n) any and Liabilities arising from the operation of any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior successor liability Laws, including, without limitation, “bulk sales” statutes, to the Closing extent that non-compliance therewith or any Liabilities for a warranty claim for any product the failure to obtain necessary clearances would subject the Purchaser or service sold, distributed or performed, as the case may be, by the Seller on or prior Purchased Assets to the Closing based on claims of any express warranty, oral or writtencreditors of Sellers other than with respect to the Assumed Liabilities, or would subject any implied warranty of the Purchased Assets to any Encumbrances or other restrictions, other than Encumbrances arising due to in connection with the statements or conduct of Seller or Seller’s employees or agents;Assumed Liabilities; and
(o) any and all Liabilities owed to or in respect of any Excluded Subsidiary. For the avoidance of doubt, none of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerAssumed Liabilities.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as “(the “ Excluded Liabilities,” ”). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all of which Seller shall retain and remain liable for (whether such Excluded Liabilities which they are known or unknownobligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement liabilities or the negotiation and consummation obligations relating to or arising out of the transactions contemplated by this AgreementExcluded Assets;
(b) any and all employee-related Liabilities of Seller accrued liabilities or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: obligations for (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities Taxes of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees (or any stockholder or Affiliate of Seller, regardless of whether ) or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as the Assumed Liabilities for any taxable period ending on or prior to the applicable Closing Date, (ii) Taxes that arise out of the Closing Dateconsummation of the transactions contemplated hereby or that are the responsibility of Seller pursuant to Section 6.13, and (iii) any other Taxes of Seller (or any stockholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law) ;
(c) except as specifically provided in Section 6.05, any liabilities or obligations of Seller relating to or arising out of (i) the employment of any Employee prior to the Closing, or (ii) workers’ compensation claims of any Employee which relate to events occurring prior to the extent arising out of or resulting from the Excluded Assets or Excluded LiabilitiesClosing Date;
(gd) any and all Liabilities liabilities or obligations of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or incurred in connection with FCC enforcement actionsthe 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;
(e) any liabilities in each caserespect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(f) any product liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;
(g) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller;
(h) any and all Liabilities relating liabilities of Seller arising under or in connection with any Benefit Plan providing benefits to any present or arising out former employee of Excluded Assets, including Excluded ContractsSeller;
(i) any and all Liabilities for the return by any customer liabilities of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product present or service soldformer employees, distributed officers, directors, retirees, independent contractors or performedconsultants of Seller, as including, without limitation, any liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments; provided, however, that the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;Severance Obligations shall not be an Excluded Liability.
(j) any and all Taxes arising from Environmental Claims, or with respect liabilities under Environmental Laws, to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit extent arising out of a breach or alleged breach thereof by Seller on relating to facts, circumstances or prior to the Closing Date;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller conditions existing on or prior to the Closing or otherwise to the extent arising out of any Liabilities for a warranty claim for actions or omissions of Seller;
(k) any product trade accounts payable of Seller that arose prior to the Taunton Closing Date and that are not Assumed Accounts Payable;
(l) any liabilities of the Business relating or service soldarising from unfulfilled commitments, distributed quotations, purchase orders, customer orders or performed, as work orders that (i) do not constitute part of the case may be, Purchased Assets issued by the Business’ customers to Seller on or prior before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to the Closing based on any express warranty, oral or written, or any implied warranty arising due Buyer pursuant to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(qm) any and all Liabilities liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller for salaries, commissions, bonuses, deferred compensation or like payments (including with respect to any director, officer or employee breach of the Seller for the period prior to the Closingfiduciary obligations by same), except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement for indemnification of same pursuant to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.Section
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. Purchaser will Notwithstanding any other provision of this Agreement, and except for the Assumed Liabilities specified in Section 2.3, Seller shall remain responsible for and Buyer shall not assume, or be liable for, assume any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (or obligations, whether such Excluded Liabilities are fixed or contingent, known or unknown, absolutematured or unmatured, executory or non-executory, whether such liability or obligations arise out of occurrences prior to, at or after the date hereof, including without limitation the following (collectively, the "EXCLUDED LIABILITIES"):
(i) Liabilities (other than those arising under the Acquired Contracts) not reflected on the Financial Statements of Seller at the Closing Date whether fixed or contingent, liquidated known or unliquidatedunknown, due matured or unmatured, executory or non-executory, whether such liability arises out of occurrences prior to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:;
(aii) any All liabilities and all Liabilities obligations of and/or on behalf of Seller for costs Seller, Partners, and expenses incurred in connection with Shareholders under this Agreement or with respect to or arising out of the negotiation and consummation of the transactions contemplated by this Agreement;
(biii) any All liabilities and all employee-related Liabilities obligations of Seller accrued for Seller's, Partners', and Shareholders' fees and expenses and taxes incurred by Seller in connection with, relating to, or arising out of actionsthe consummation of the transactions contemplated by this Agreement, omissions except as specifically contemplated herein;
(iv) All liabilities of Seller owed to Partners, Shareholders or events occurring any of their affiliates including, but not limited to, all liabilities of Seller to repay loans or advances owed to Partners, Shareholders or any affiliate of either, it being understood that the Asset Value of Seller used in calculating the Purchase Price will, among other things, include the assets represented by prepaid expenses and deposits in respect of the New Projects and Other Projects which have been loaned or advanced by the Shareholders, without deduction for such loans or advances as liabilities of Seller, and that any such loans or advances shall be repaid, if at all, from Seller's proceeds of the Purchase Price after Closing.
(A) Any liabilities, obligations or expenses for Taxes (including property taxes for property of Seller closed prior to or on the Closing Date, includingbut not including property taxes for property of Seller which has not closed prior to such Date) of the Seller (regardless of when incurred) or of any other person (regardless of when incurred) under Treas. Reg. 1502-6 (or any similar provision of state, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practiceslocal, or foreign law) as a transferee or successor, by contract or otherwise; (vi) discrimination complaints;
(cB) 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 to employees of Seller, regardless of whether liabilities or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, obligations or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any expenses of the Purchased Assets pursuant Seller related to any applicable bulk sales, bulk transfer pending or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and threatened litigation against Seller or any of its affiliates, on otherwise related to the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased business or Acquired Assets or Seller and existing as of the Closing Date, or (ii) to the extent including any liability on obligations arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or occurrences prior to the Closing Date;
; (hC) any and all Liabilities liabilities, obligations, or expenses arising from or relating to or arising out consisting of Excluded any lien, encumbrance or claim affecting the title to the Acquired Assets, including Excluded Contracts;
other than Permitted Liens; (iD) any liabilities, obligations, or expenses under any land contracts arising or relating to the period prior to the Closing Date except for liabilities, obligations or expenses related to the Acquired Contracts; (E) any liabilities, obligations or expenses relating to any environmental matter or condition; and all Liabilities for the return (F) any liability or obligation to or in respect of any employees or former employees of Seller, including without limitation (1) any employment agreement, whether or not written, between Seller and any person, (2) any liability under any employee plan at any time maintained, contributed to or required to be contributed to by or with respect to Seller or under which Seller may incur liability, or any customer contributions, benefits or liabilities therefor, or any liability with respect to Seller's withdrawal or partial withdrawal from or termination of Seller any employee plan, or (3) any claim of products sold an unfair labor practice, or distributed by Seller any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination law or regulation, which shall have been asserted on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date is based on any express warranty acts or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending omissions which occurred on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions Anything contained in this Agreement to the contrarycontrary notwithstanding, Purchaser is assuming only Seller shall remain responsible for and Buyer shall not assume the Assumed Excluded Liabilities which Excluded Liabilities shall at and is not assuming any other Liability after the Closing remain the exclusive responsibility of Seller, Partners, and Shareholders. Seller, Partners, and Shareholders shall discharge all Excluded Liabilities and, without limitation of the foregoing, if Seller or its Subsidiaries (Partners shall liquidate, dissolve, or any predecessor owner wind-up after the Closing, Seller or Partners shall pay, post security for, or otherwise make provision for all such liabilities to the reasonable satisfaction of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerBuyer.
Appears in 1 contract
Excluded Liabilities. Purchaser will Except for the Assumed Liabilities, Buyer is not assumeassuming any debt, liability, or be liable forobligation of Seller (whether relating to the Business, the Purchased Assets, or otherwise) of any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as kind or nature whatsoever (the “Excluded Liabilities,” all of which ”), and Seller (and/or, as applicable, Owner) shall retain and remain liable for (whether satisfy in due course all such Excluded Liabilities are known or unknownLiabilities. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of include the following Liabilitiesfollowing:
(a) any liabilities arising out of or relating to the Excluded Assets or any operations of Seller other than the Business;
(b) any liabilities or obligations for borrowed money of any kind (whether current, short-term or long-term, secured or unsecured, and including all overdrafts and negative cash balances) and related fees or expenses;
(c) all liabilities under all of Seller’s contracts, other than the Assigned Contracts and under the Assigned Contracts to the extent not Assumed Liabilities;
(d) all liabilities of Seller under, arising out of, or relating to, any Seller Benefit Plan or insurance policy;
(e) all Tax liabilities of Seller relating to operation of the Business or ownership of the Purchased Assets for the Pre-Closing Tax Period, and all Liabilities Taxes of and/or on behalf of a Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation Party which may become due as a result of the transactions contemplated by this Agreement;
(bf) any all liabilities and all employee-related Liabilities obligations of Seller accrued or arising out with respect to any claim, demand, cause of actionsaction, omissions or events occurring prior to or on the Closing Datesuit, includingproceeding, without limitation: (i) accrued salaries and wagesjudgment, (ii) accrued vacation and sick payloss, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practicesliability, or (vi) discrimination complaints;
(c) 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 to employees of damage against Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities other debt, liability, or obligation of Seller arising by reason (including all liabilities in respect of any violation of any Law Seller leased or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Dateowned automobiles);
(h) except to the extent included in the Final Closing Net Working Capital, all liabilities and obligations to all employees of any Seller accrued since its inception (including accruals reflecting all earned but unpaid vacations, holidays, and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contractsbonuses);
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior income Taxes, payroll Taxes (except to the extent included in the Final Closing Date or for a warranty claim for any product or service soldNet Working Capital), distributed or performedand other statutory federal, as the case may bestate, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any local, and all non-U.S. Taxes arising from or with respect to the Business or the ownership of the Purchased Assets or for the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Pre-Closing DateTax Period, and income and similar Taxes, all Taxes of a type not described in Section 7.11, that are imposed Seller which may become due as a result of the sale of the Purchased Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction transactions contemplated by this Agreement;
(qj) any and all Liabilities other liability of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee that exists as of the Seller for the period prior to the Closing, except Closing that would otherwise become a liability or obligation of Buyer as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions a matter of Law in connection with this Agreement to or the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerTransaction Documents.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding any provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be obligated to assume or be obliged to pay, perform or otherwise discharge any Liability of, or Liability against, Sellers, Sellers’ Subsidiaries, the Business or the Acquired Assets, of any kind or nature, whether or not direct or indirect, and Sellers shall be solely and exclusively liable forwith respect to all Liabilities of Sellers, any liabilities which are not other than the Assumed Liabilities (such Liabilities other than Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as , collectively, the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing”). Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, include each of the following Liabilities:Liabilities of Sellers and Sellers’ Subsidiaries, except to the extent they are set forth in Sections 2.3(a)-(m):
(a) all Liabilities with respect to any Taxes that are not expressly assumed by the Buyer pursuant to Section 2.3(k);
(b) all Liabilities with respect to Actions and Proceedings pending on or before the Closing Date or to the extent against or giving rise to Liability against the Business or the Acquired Assets prior to the Closing Date even if instituted after the Closing Date other than the Acquired Actions;
(c) all Liabilities to any owner or former owner of capital stock or warrants with respect to such capital stock or warrants, holder of Indebtedness for borrowed money, or current or former officer or director of, in each case, any Seller or Subsidiary of any Seller in such capacities;
(d) except as expressly provided herein, all Liabilities with respect to any Excluded Asset, including any and all Collective Bargaining Agreements, Excluded Benefit Plans and liabilities in respect of the benefit plans, programs and arrangements of any ERISA Affiliate;
(e) all Liabilities of and/or under any futures contracts, options on behalf of Seller for futures, swap agreements or forward sale agreements;
(f) other than Trade Payables and the Estate Retained Professional Fees Trust Amount, all Liabilities for: (i) costs and expenses incurred or owed in connection with this Agreement or the negotiation administration of the Bankruptcy Case (including all Estate Retained Professional Fees); and (ii) all costs and expenses incurred by Sellers in connection with the negotiation, execution and consummation of the transactions contemplated by under this Agreement;
(bg) except as set forth in Section 2.3(d), all workers’ compensation claims and occupational health claims related to the Acquired Assets, including and with respect to Buyer Employees and former employees of Sellers who worked or who were employed at the Acquired Assets;
(h) any and Liability or other obligations of Sellers or any ERISA Affiliate arising under, relating to or with respect to any multiemployer pension plan, single employer pension plan or Multiemployer Plan;
(i) except for the Assumed Benefits, all employee-related Liabilities with respect to Employees, or former Employees, or both (or their representatives or beneficiaries) or employees of any ERISA Affiliate, for any action or inaction of any Seller accrued (or arising out any predecessor of actions, omissions or events any Seller) occurring prior to or on the Closing Date, includingincluding with respect to vacation, without limitation: (i) accrued salaries and wagespayroll, (ii) accrued vacation and sick payleave, (iii) accrued payroll Taxesunemployment benefits, (iv) withholdingsretirement benefits, (v) charges of unfair labor practicespension benefits, employee stock option, equity compensation, employee stock purchase, or profit sharing plans, health care and other welfare plans or benefits (vi) discrimination complaints;
(c) including COBRA or the Coal Act), or any other employee plans or arrangements or benefits or other compensation of any kind to any employee, including under any Excluded Benefit Plan or benefit plans, programs and all arrangements of an ERISA Affiliate, and Liabilities of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA Sellers and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser their predecessors pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DateWARN Act;
(j) except for the Assumed Benefits, any and all Taxes Liability arising from under any employment agreement, Collective Bargaining Agreement or arrangement, severance, retention or termination agreement or other similar arrangement with respect to the Purchased Assets any employee, consultant or the operation of the Business that are incurred in contractor (or attributable to any period, or any portion its representatives) of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Seller;
(k) all Liabilities (other than Assumed Liabilities) accruing, arising out of, or relating to any Liabilities federal, state or local investigations of any Seller or any Employee, agents, vendors or representatives of any Seller arising out of actions prior to the Seller for Indebtedness;Closing (other than rights of setoff and recoupment claims); and
(l) any and all Liabilities of Seller under any Contractexcept as set forth in Section 2.3(m), (i) if the ▇▇▇▇▇▇ ▇▇▇▇ Election or the Pre-Closing ▇▇▇▇▇▇ ▇▇▇▇ Election is made or if the ▇▇▇▇▇▇ ▇▇▇▇ Assets are sold to a Successful Bidder (other than the Purchased ContractsBuyer or a Buyer Designee), and 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;
(m) 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 extent related to the Closing Date;
▇▇▇▇▇▇ ▇▇▇▇ Assets, (nii) any and any if the Blue Creek Assets are sold to a Successful Bidder (other than the Buyer or a Buyer Designee), Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior extent related to the Closing based on Blue Creek Assets, (iii) if any express warrantyMiscellaneous Real Property Assets are designated by Buyer as “Excluded Assets” or if any Miscellaneous Real Property Assets are sold to a Successful Bidder (other than the Buyer or a Buyer Designee), oral or written, or any implied warranty arising due Liabilities to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 extent related to products such Miscellaneous Real Property Assets and (or parts or components thereofiv) sold, distributed or otherwise disposed of or services performed by or on behalf of the Seller, in each case, on or prior to the Closing Date;
(p) any and all extent that there are Acquired Non-Core Assets, Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Preextent related to such Acquired Non-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerCore Assets.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which or obligations of Seller or any of its Affiliates that are not Assumed Liabilities. All such liabilities which are not expressly Assumed Liabilities shall be referred to as (collectively, the “Excluded Liabilities,” ”), and all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, shall remain the obligations of Seller from and whether claims with respect thereto are asserted before or after the Closing). The Excluded Liabilities shall include, but are not be limited to, each all of the following Liabilitiesliabilities:
(a) any liabilities or obligations arising out of or relating to Seller’s ownership or operation of the Business and all Liabilities the Purchased Assets prior to the Closing;
(b) any liabilities or obligations relating to or arising out of and/or on behalf the Excluded Assets;
(c) any liabilities or obligations for Excluded Taxes;
(d) except as reflected as a Current Liability in Closing Working Capital, any liabilities or obligations relating to or arising out of or in connection with (i) the employment or service with Seller or any of its Affiliates, or termination of employment or service from Seller or any of its Affiliates, of any Person at any time, (ii) workers’ compensation claims of any Person which relate to events occurring prior to the Closing Date, or (iii) any Benefit Plan or any other benefit or compensation plan, policy, program, Contract, agreement, or arrangement at any time maintained, sponsored, contributed or required to be contributed to by Seller or any of its Affiliates, or with respect to which Seller or any of its Affiliates has any current or contingent liability or obligation;
(e) any liabilities or obligations of Seller for costs and expenses or its Affiliates arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, the Transaction Expenses and any other fees and expenses of counsel, accountants, consultants, advisers and others except as expressly set forth herein;
(f) any liabilities and obligations of Seller or its Subsidiaries set forth on Schedule 2.5(f) attached hereto;
(g) any intercompany claim to payment and any other amount owed by the Business to the Seller or its Affiliates as of the Closing;
(h) any liabilities arising out of any Legal Proceedings, to the extent arising or accruing against or related to the operation of the Business or the Purchased Assets prior to the Closing;
(i) any liabilities arising out of any failure of the Business or Seller to comply with any applicable Law to the extent arising or accruing against or related to the operation of the Business or the Purchased Assets prior to the Closing;
(j) any liabilities, including any Economic Detriment arising out of any spinoff transaction, corporate reorganization or restructuring activities by the Seller and its Subsidiaries in preparation of the Business for sale or the actual sale of the Business or that otherwise affects the Business; and
(k) the Transaction Expenses and all accounting, tax and legal fees and expenses incurred by the Seller (contingent or otherwise) in connection with the sale process, structuring, negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Asset and Equity Purchase Agreement (Asure Software Inc)
Excluded Liabilities. Purchaser will Notwithstanding the provisions of -------------------- Sections 2.1 and 2.2, Buyer shall not assume, or be and Sellers shall remain liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” and all of which Seller shall retain liabilities, obligations, claims and remain liable for commitments (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become dueotherwise, and whether claims whenever asserted) of or against the Assets, the Business and Sellers other than the Lease Obligations and the Assumed Liabilities (the "Excluded Liabilities"), including, without limitation, any of the following: (i) any obligation under agreements and instruments included in the Excluded Assets, including all obligations under the Employee Plans and all employee benefit plans with respect thereto are asserted before to which any Seller or after the Closing). Excluded Liabilities shall includeany other entity which, but not be limited to, each together with any Seller that is treated as a single employer under Section 414 of the following Liabilities:
Code, has any liability or obligation; (aii) any and all Liabilities liabilities or obligations of and/or on behalf of Seller for costs and expenses Sellers arising or incurred in connection with this the negotiation, preparation and execution of the Agreement or and the negotiation and consummation of the transactions contemplated by this Agreement;
hereby, including without limitation the fees and expenses of Sellers' counsel, accountants, financial advisers and other experts; (biii) royalty liabilities for any and all employee-related Liabilities of Seller accrued period on or prior the Closing Date or arising out of actions, omissions or events occurring prior relating to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, Excluded Locations; (iv) withholdings, other than liabilities and obligations under Other Assumed Leases (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any to the extent that such liabilities and all Liabilities of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA obligations are attributable to periods from and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date), which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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 non-current liabilities arising out of or resulting from relating to the Excluded Assets Locations and any liability or Excluded Liabilities;
obligation that are specifically listed on Schedule 2.3; (gv) any and all Liabilities liability or obligation ------------ (including any investigative or remedial obligation) arising under any applicable Environmental Laws (as defined in Section 3.19), except where the facts or conditions underlying such liability or obligation are solely caused by the operation of Seller arising the Acquired Stores by reason of Buyer after the Closing Date; (vi) any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection indebtedness other than with FCC enforcement actions, in each case, respect to the extent such Liability results from capital leases listed on Schedule 2.2(iii); (vii) any liability or arises obligation arising out ----------------- of events, facts or relating to any litigation which is based upon events or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or arising out of or relating to the Excluded Locations; (viii) any liability or obligation arising out of or relating to any intercompany obligation between Sellers or any of their Affiliates; and (ix) any liability of Sellers for a warranty claim Taxes for any product or service sold, distributed or performed, as the case may be, by Seller period on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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 relating to the Closing Date;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition LiabilitiesLocations. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.ARTICLE 3 ---------
Appears in 1 contract
Excluded Liabilities. At the Closing, Seller or its Affiliates shall retain (or, if necessary, expressly assume), and shall be responsible for paying, performing and discharging when due, and Purchaser will shall not assume, assume or be liable have any responsibility for, any liabilities which are Liabilities not specifically included in the definition of “Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as ” (collectively, the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown”), absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of including the following Liabilities:
(a) any and all Liabilities of and/or on behalf Seller or any of Seller for costs and expenses incurred in connection its Affiliates to the extent relating any employment arrangement entered into with this Agreement any of its employees prior to Closing, whether the payment obligation thereunder occurs before or the negotiation and consummation of the transactions contemplated by this Agreementafter Closing;
(b) any and all employee-related Liabilities of Seller accrued or any of its Affiliates to the extent relating to any real property which Seller or one of its Affiliates owns or of which Seller or one of its Affiliates is the lessee or sublessee, including any associated Contracts;
(c) all Liabilities of Seller or any of its Affiliates to the extent relating to or arising out of actionsSeller’s Other Businesses or the Excluded Assets;
(d) all Liabilities retained by Seller pursuant to Section 8.3 and Article 9;
(e) all indebtedness for borrowed money of Seller under any note, omissions bond, credit agreement or events occurring similar instrument with any financial institution, officer, shareholder, Affiliate or otherwise to any other Person;
(f) all intercompany payables and loans between Seller and any of its Affiliates, or between any Affiliate of Seller and any other Affiliate of Seller;
(g) any Liabilities of Seller under this Agreement or the Ancillary Agreements;
(h) any Liabilities of Seller in respect of all Taxes (other than as set forth in Section 9.5);
(i) any Liabilities of Seller under any Excluded Contracts, including the associated accounts payable; and
(j) any Liabilities to the extent arising out of or based upon Seller’s ownership and operation of the Business and the Purchased Assets prior to or on the Closing Date, including, without limitation: , (i) accrued salaries and wagesany Liabilities resulting from infringement, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, misappropriation or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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 violations arising out of or resulting from based upon Seller’s ownership and operation of the Excluded Business and the Purchased Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date and (ii)those Liabilities under the Assumed Purchase Orders or for the Assigned Contracts that arise as a warranty claim for result of a breach of any product Assumed Purchase Order or service sold, distributed or performedAssigned Contract, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding anything in this Agreement to the contrary, Buyer shall not assume, or and shall be liable fordeemed not to have assumed, any liabilities which are not Assumed Liabilities relating to the Business of Sellers or any Affiliate of Sellers and Sellers and their Affiliates shall be solely and exclusively liable with respect to all such Liabilities. All such liabilities which are not , other than the Assumed Liabilities shall be referred to as (collectively, the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded ”), including those Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesset forth as follows:
(a) any and Liability of any Seller relating to any Excluded Asset;
(b) all Liabilities under Indebtedness of and/or on behalf the type referred to in clause (a) of the definition thereof of Sellers (including any Indebtedness or accounts payable owing from any Seller to an Affiliate of such Seller);
(c) except for costs any Liabilities for Taxes that are Assumed Liabilities, all Tax Liabilities for Pre-Closing Tax Periods, including Pre-Closing Straddle Period Taxes, and expenses incurred in connection with this Agreement or the negotiation and consummation any Tax Liabilities of Sellers arising from the transactions contemplated by this Agreement;
(bd) any and all employee-related Liabilities of Seller accrued or Sellers relating to employees of Excluded Subsidiaries and Sellers that are not Transferred Employees (“Excluded Employees”);
(e) all Liabilities of Sellers arising out of actionsof, omissions or events occurring prior relating to or with respect to (i) the employment or performance of services, or termination of employment or services by any Seller of any employee, or independent contractor on or before the close of business on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick payemployment or labor Actions accruing either directly or indirectly against Seller that relate to the period on or before the close of business on the Closing Date, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless irrespective of whether or not such employees accept employment with Purchaser pursuant claims are made prior to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(eiii) any and Benefit Plan (including all Liabilities under any intercompany loans, accounts to the IRS or Contracts between the Business, on the one hand, and Seller or any Department of its affiliates, on the other handLabor);
(f) any 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 LiabilitiesRejection Damages Claims;
(g) any and all tort Liabilities of any Seller arising by reason of based on any violation of any Law acts, omissions, or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances conditions occurring or existing on or prior to the Closing Date;
(h) any and all Environmental Liabilities relating to to, resulting from, caused by or arising out of Excluded Assetsownership, including Excluded Contracts;
(i) any and all Liabilities for operation or control of the return by any customer of Seller of products sold or distributed by Seller on or prior Business, to the Closing Date extent accruing, arising out of or for a warranty claim for any product relating to events, occurrences, acts or service sold, distributed omissions occurring or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents existing prior to the Closing Date;
(i) all Actions against each Seller, any of their respective assets, the Business and any of their past or present operations or activities;
(j) any the obligations under the Credit Agreement, dated as of November 22, 2021, by and all Taxes arising among Holdings and AgileThought Mexico, S.A. de C.V., as borrowers, AN Global LLC, as Intermediate Holdings, the lenders party thereto from or with respect time to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing Datetime, 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 Assets pursuant to this Agreement (except, in any caseGLAS USA LLC, as otherwise provided in this Agreement)administrative agent, and GLAS Americas LLC, as collateral agent;
(k) any Liabilities Tax obligations of the Seller for IndebtednessMexican Entities or any other Group Company, in each case, other than the Acquired Entities and their Subsidiaries;
(l) any and all those Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller specifically set forth on or prior to the Closing Date;Schedule 2.4(l); and
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerIndemnification Claims.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.02 or any other provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as “(the "Excluded Liabilities,” "). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all of which Seller shall retain and remain liable for (whether such Excluded Liabilities which they are known or unknownobligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement or Agreement, the negotiation other Transaction Documents and consummation of the transactions contemplated by this Agreementhereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: Liability for (i) accrued salaries and wagesTaxes of Seller (or any stockholder or Affiliate of Seller) or relating to the Seller, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) accrued vacation and sick pay, Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Seller pursuant to Section 6.11; or (iii) accrued payroll Taxes, other Taxes of Seller (ivor any stockholder or Affiliate of Seller) withholdings, of any kind or description (vincluding any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) charges that becomes a Liability of unfair labor practices, Buyer under any common law doctrine of de facto merger or (vi) discrimination complaintstransferee or successor liability or otherwise by operation of contract or Law);
(c) any and all Liabilities in respect of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether any pending or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims threatened Action arising out of, relating to or otherwise in respect of the operation of the Seller’s creditors, whether arising before business or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(d) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;
(e) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller;
(f) any Liabilities of Seller for any present or former employees, agents or independent contractors of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, workers' compensation, severance, retention, termination or other payments;
(g) any trade accounts payable of Seller (i) which constitute intercompany payables owing to Affiliates of Seller; (ii) which constitute debt, loans or credit facilities to financial institutions; or (iii) which did not arise in the ordinary course of business;
(h) any and all Liabilities of the Seller relating to or arising out from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of Excluded Assets, including Excluded Contractsthe Purchased Assets issued by the Seller’s customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(i) any and all Liabilities for the return by to indemnify, reimburse or advance amounts to any customer present or former officer, director, employee or agent of Seller (including with respect to any breach of products sold or distributed fiduciary obligations by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Datesame);
(j) any Liabilities under any other Contracts (i) which are not validly and all Taxes arising from or with respect effectively assigned to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets Buyer pursuant to this Agreement Agreement; (except, in any case, as otherwise provided ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement); or (iii) to the extent such Liabilities arise out of or relate to a breach by Seller of such Contracts prior to Closing;
(k) any Liabilities associated with debt, loans or credit facilities of the Seller for Indebtedness;owing to financial institutions; and
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of, in respect of a breach or alleged breach thereof in connection with the failure by Seller on or prior any of its Affiliates to the Closing Date;
(m) any and all Liabilities of Seller arising by reason of any violation or alleged violation of comply with any Law or any requirement of any Governmental Body on or prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerOrder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Empowered Products, Inc.)
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform, or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” all of which ”). Seller shall retain pay and remain liable for (whether such satisfy in due course all Excluded Liabilities are known or unknownthat Seller is obligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of include the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation obligations related to accounts payable as of the transactions contemplated by this AgreementClosing Date;
(b) any and all employee-related Liabilities of Seller accrued arising or arising out incurred in connection with the negotiation, preparation, investigation, and performance of actionsthis Agreement, omissions or events occurring prior to or on the Closing DateAncillary Documents, includingand the transactions contemplated hereby and thereby, without limitation: (i) accrued salaries including fees and wagesexpenses of Seller’s counsel, (ii) accrued vacation accountants, consultants, and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsadvisers;
(c) any and all Liabilities Liability for (i) Taxes of Seller or Taxes relating to the Business, the Purchased Assets, or the Assumed Liabilities for the provision any Pre-Closing Tax Period, or (ii) other Taxes of health plan continuation coverage in accordance with the requirements Seller of COBRA and Sections 601 through 608 any kind or description (including any Liability for Taxes of ERISA to employees Seller that becomes a Liability of Seller, regardless Buyer under any common law doctrine of whether de facto merger or not such employees accept employment with Purchaser pursuant to Section 8.1transferee or successor liability or otherwise by operation of contract or Law);
(d) any Liabilities to the extent relating to or arising out of the Excluded Assets, including Environmental Claims and all Liabilities owed to, or claims of, Seller’s creditors, under Environmental Laws to the extent related to the Excluded Assets;
(e) any Liabilities (whether arising before or after the Closing DateClosing) in respect of any pending or threatened Action arising out of, which may be asserted against Purchaser relating to, or any otherwise in respect of the ownership or operation of the Business or the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from Action relates to such ownership or arises out of events, facts or circumstances occurring or existing operation on or prior to the Closing Date;
(hf) any Liabilities of Seller, whether arising before or after the Closing, under or in connection with the issues raised, considered, decided, or appealed from (x) RCA Order No. U-16-094(9)/U-17-008(13) and all Liabilities relating Order No. U-16-094(10)/U-17-008(14), (y) Case No. 3AN-14-06125CI, and (z) Docket No. U-18-102(1), but in each such case only to or arising out of Excluded Assets, including Excluded Contracts;
the extent that (i) any and all such Liabilities for relate to ownership or operation of the return by any customer of Seller of products sold Business or distributed by Seller the Purchased Assets on or prior to the Closing Date and (ii) any related Loss is not recoverable in rates by Buyer;
(g) any Liability of Seller or similar claim against Seller for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or injury prior to the Closing Date based on to a Person or property, including workers’ compensation claims;
(h) any express warranty Liabilities of Seller arising, whether before or implied warranty arising due after the Closing, under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller in connection with employment with Seller other than Accrued Leave;
(i) any Liabilities relating to any payroll or other compensation obligations incurred and required to be paid prior to the statements Closing, the failure by Seller to hire any Asset Purchase and Sale Agreement dated as of December 28, 2018 between Municipality of Anchorage and Chugach Electric Association, Inc. individual, the employment or conduct services (or termination by Seller of the employment or services) of any individual, including Retention Agreements, wages, COBRA coverage, compensation, bonuses, benefits, accrued vacation, severance, retention, termination payments, affirmative action, personal injury, discrimination, harassment, retaliation, wrongful discharge, unfair labor practices, or constructive termination by Seller of any individual, or any similar or related claim or cause of action attributable to any actions or inactions by Seller’s employees or agents , in each case prior to the Closing Date, with respect to the Transferred 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;
(j) any and all Taxes arising from or with respect Liabilities related to the Purchased Assets Business which constitute intercompany payables or the operation of the Business that are incurred in or attributable intergovernmental charges owing to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Seller;
(k) any Liabilities of the Seller for IndebtednessBusiness relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders, or work orders that (i) do not constitute part of the Purchased Assets or (ii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(l) any and all Liabilities to indemnify, reimburse, or advance amounts to any present or former official, manager, employee, or agent of Seller for or in connection with any event or circumstance occurring while such individual was an official, manager, employee, or agent of Seller;
(m) any Liabilities under the Excluded Contracts or any Contractother Contracts, including Intellectual Property Agreements, (i) that are not validly and effectively assigned to Buyer pursuant to this Agreement or (ii) to the extent such Liabilities arise out of or relate to a breach by Seller of such Contracts prior to the Closing;
(n) any Liabilities associated with debt, revenue bonds, commercial paper, loans, or credit facilities of Seller or the Business;
(o) any Liabilities, other than the Purchased ContractsAssumed Environmental Liabilities, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach of, in respect of, or alleged breach thereof in connection with the failure by Seller on to comply with any Law or Governmental Order;
(p) fines or penalties owing to any Governmental Authority for events to the extent occurring or arising prior to the Closing Date;
(mq) any Liability of Seller arising from the violation, breach, or default by Seller, prior to the Closing, of any Assumed Liability or Intellectual Property Assets included in the Purchased Assets;
(r) any Liability arising under any collective bargaining agreement of Seller, including any and all Liabilities obligations incurred under the IBEW Collective Bargaining Asset Purchase and Sale Agreement dated as of Seller arising by reason December 28, 2018 between Municipality of any violation or alleged violation of any Law or any requirement of any Governmental Body on or Anchorage and Chugach Electric Association, Inc. Agreement prior to the Closing Date, including pension/retirement obligations under the Alaska Electrical Pension Fund regarding accruals earned prior to Closing;
(ns) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct Liability of Seller or Seller’s employees or agentsML&P for payments in lieu of taxes, including pursuant to AMC 26.10.025;
(ot) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller accruing or its Subsidiaries arising and required to be performed prior to the Closing;
(or u) any predecessor owner of all or part Environmental Claims and Liabilities under Environmental Laws, and Losses arising from environmental conditions at the Purchased Assets, as of the BusinessClosing Date other than the Assumed Environmental Liabilities; and
(v) of whatever nature. All such any other Liabilities shall be not expressly assumed by Buyer pursuant to Section 2.03 and any Liabilities expressly allocated to or retained by and remain Liabilities and obligations of SellerSeller in this Agreement.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Chugach Electric Association Inc)
Excluded Liabilities. In general, the Parties hereto intend that the Purchaser will shall be entitled to all Benefits and Obligations from the operation of the Assets subsequent to the Closing Date, and shall also be responsible for all costs therefor. However, until the Closing Date, the Vendor shall be responsible for the operation of the Assets and the actions of the employees and contractors of the Vendor. Accordingly, notwithstanding any other provision of this Agreement, except for the Assumed Liabilities expressly specified in Section 2.8 or set out in the Interim Purchase Price Statement, the Purchaser shall not assume, or otherwise be liable responsible for, any of the Vendor's liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (or obligations, whether such Excluded Liabilities are known actual or unknowncontingent, absolute, contingentmatured or unmatured, liquidated or unliquidated, due known or unknown, or related or unrelated to become duethe Business or the Assets (collectively, "Excluded Liabilities") (or if the Vendor does assume any such Excluded Liabilities, then the same shall be expressly set out in the Interim Purchase Price Statement and whether claims with respect thereto are asserted before or after shall form an adjustment to the Closingaggregate Purchase Price). , which Excluded Liabilities shall include, but not be limited to, each of the following Liabilitieswithout limitation:
(a) Any liability or obligation to or in respect of any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement employees or the negotiation and consummation former employees of the transactions contemplated by this Agreement;
Vendor including, without limitation, (bi) any employment agreement, whether or not written, between the Vendor and all employee-related Liabilities of Seller accrued or arising out of actionsany person, omissions or events occurring which shall have been asserted prior to the Closing Date or is based on acts or omissions which occurred prior to the Closing Date, includingunless otherwise specifically addressed in the Advisory Agreement, without limitation: (i) accrued salaries the Elbow River Employment Agreements, the Assumed Contracts or specifically agreed to in writing between the Purchaser and wagesthe Vendor, (ii) accrued vacation and sick payany liability under any Employee Plan at any time maintained, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practicescontributed to or required to be contributed to by or with respect to the Vendor or under which the Vendor may incur liability, or (vi) discrimination complaints;
(c) 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 to employees of Sellercontributions, regardless of whether benefits or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed toliabilities therefor, or claims ofany liability with respect to the Vendor's withdrawal or partial withdrawal from or termination of any Employee Plan, Seller’s creditors, whether arising before which shall have been asserted prior to the Closing Date or after is based on acts or omissions which occurred prior to the Closing Date, which may be asserted against Purchaser unless otherwise specifically addressed in the Advisory Agreement, the Elbow River Employment Agreements, the Assumed Contracts or the Employment Letters, or as specifically contemplated pursuant to Section 7.1 of this Agreement, and (iii) any claim under labour relations or employment standards legislation, any disability claim or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities claim under any intercompany loansunemployment compensation or worker's compensation law or regulation or under any federal or provincial human rights and/or employment discrimination law or regulation, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating which shall have been asserted prior to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, Date or (ii) to the extent arising out of is based on acts or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or omissions which occurred prior to the Closing Date;
(hb) any and all Liabilities relating to Any liability or arising out obligation of Excluded Assetsthe Vendor or the Shareholders in respect of Taxes of the Vendor or of the Shareholders, including Excluded Contractsrespectively;
(ic) any Any liability or obligation of the Vendor in respect of accounts payable of the Vendor relating to the Business or the Assets and all Liabilities for the return by any customer of Seller of products sold which arose or distributed by Seller on or prior to accrued before the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior are otherwise unrelated to the Closing Date based on any express warranty Business or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DateAssets;
(jd) any and all Taxes Any liability arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 defects in products leased, rented or related to products (or parts or components thereof) sold, distributed or otherwise disposed of sold or services performed by or on behalf of the SellerVendor or any other person or entity prior to the Closing Date or arising from any other cause including, in each casewithout limitation, any liabilities arising (on a date of occurrence basis or otherwise) prior to the Closing Date relating to the use or misuse of the Vendor's products or Equipment or to traffic accidents;
(e) Any liability or obligation of the Vendor arising out of or related to any action against the Vendor or any action which adversely affects the Assets and which shall have been asserted prior to the Closing Date or to the extent the basis of which shall have arisen prior to the Closing Date;
(pf) any and all Liabilities of Seller for severance pay Any liability or the like with respect to any employee obligation of the Seller that does not accept employment with Vendor or Shareholders resulting from entering into, performing its obligations pursuant to or consummating the Purchaser upon completion of the transaction transactions contemplated by by, this Agreement;
(qg) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation Any liability or like payments obligation related to any director, officer the Leased Facilities arising or employee of the Seller for the period accruing prior to the Closing, except as otherwise expressly provided hereinClosing Date; and
(rh) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Any Environmental Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerobligation.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. Purchaser will not assumeIt is expressly understood and agreed that, or notwithstanding anything to the contrary in this Agreement, Seller shall retain, and shall continue to be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as responsible after the Closing Date for the “Excluded Liabilities,” ”, which term shall mean all Liabilities relating to the Business at or prior to the Closing (other than the Assumed Liabilities), including, without limitation:
(i) All Liabilities to the extent arising out of which Seller shall retain or relating to the Excluded Assets, including, without limitation, all Liabilities arising out of or relating to the IQstream Business;
(ii) All Liabilities to the extent arising out of or resulting from the conduct of the Business at or prior to the Closing, including the lawsuits and remain liable for (claims set forth in Section 1.1(d)(ii) of the Disclosure Schedule, and any other lawsuits or claims to the extent arising out of or resulting from the conduct of the Business at or prior to the Closing whether such Excluded Liabilities lawsuits or claims are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted initiated before or after the Closing, except those Liabilities (i) included on the Final Statement of Net Assets or (ii) related to Assigned Contracts (other than any Liability arising out of or relating to a breach of any Assigned Contract that occurred prior to the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:;
(aiii) any and All Liabilities of Seller (A) under this Agreement (other than Assumed Liabilities), including all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this AgreementAgreement or (B) incurred in connection with any restructuring or reorganization of Seller or its Subsidiaries or Affiliates, whether or not resulting from the transactions contemplated by this Agreement or otherwise;
(biv) any and all employee-related All Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior relating to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities indebtedness obligations of Seller for and its Subsidiaries (other than Liabilities related to the provision Business arising out of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA or relating to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any indebtedness obligations of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer Transferred Subsidiaries or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (iiTransferred Foreign Branches) to the extent arising out of or resulting from not related to the Excluded Assets or Excluded LiabilitiesBusiness;
(gv) any All Liabilities relating to fraudulent conveyances, fraudulent transfers, preferential transfers and all the like by Seller or its Subsidiaries;
(vi) All Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related its Subsidiaries with respect to Environmental Laws relating to matters that occurred or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing otherwise came into existence on or prior to the Closing Date;
(hvii) any and all All Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior its Subsidiaries to the Closing Date;
(j) indemnify any and all Taxes arising from or Person in connection with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on at or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for fact that such Person was a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of Seller or a Subsidiary, or was serving at the request of Seller for the period prior to the Closingor a Subsidiary as a partner, except as otherwise expressly provided herein; andtrustee, director, officer or employee of another entity, whether arising under contract, common law or otherwise;
(rviii) Except with respect to Liabilities under the Acquired Benefit Plans and the CIC Agreement and those additional Liabilities agreed to be assumed by Buyer pursuant to Section 9.3 hereof, all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries or its Affiliates (A) relating to salary, bonus, other forms of compensation and payroll costs, including vacation pay that are accrued by Seller, its Subsidiaries or Affiliates, (B) for amounts payable in respect of retention, severance benefits, employee benefits (including, but not limited to the benefits to be provided under the Business Benefit Plans), termination and severance pay, transaction bonus arrangements, “stay-pay” or similar agreements entered into with any predecessor owner current or former employees by Seller or its Subsidiaries or Affiliates at or prior to Closing and (C) any severance or termination payment or benefits that become due and payable to any current or former employee of all Seller in connection with the transactions contemplated by this Agreement or part otherwise, other than, in the case of each of (A) through (C), Liabilities arising under agreements or plans entered into by Buyer or its Affiliates;
(ix) Any intercompany Liability between Seller and any of its Subsidiaries and/or Affiliates; and
(x) Any (A) Taxes of Seller for any taxable period, (B) Taxes relating to the BusinessExcluded Assets for any taxable period and (C) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerTaxes relating to the Non-Stock Assets for any taxable period, or portion thereof, ending on or before the Closing Date.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Sycamore Networks Inc)
Excluded Liabilities. Purchaser will Notwithstanding anything herein to the contrary, Buyer shall not assume, assume or be liable for, for any liabilities which are not or obligations of Seller or the Business other than the Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which , and Seller shall retain and remain liable be responsible for all other liabilities and obligations of Seller and the Business (whether such the “Excluded Liabilities are known or unknownLiabilities”), absolute, contingent, liquidated or unliquidated, due or including (i) all liabilities and obligations of Seller to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but extent they do not be limited to, each arise out of the Business and (ii) the following Liabilitiesliabilities and obligations:
(a) All liabilities and obligations related to the ownership or operation of the Business in any period ending on or prior to the Closing;
(b) All liabilities and all Liabilities obligations with respect to Legal Proceedings, or other regulatory, statutory, fiduciary, employment-related or Client-related claims made in respect of and/or events, transactions, occurrences or circumstances occurring on behalf or prior to the Closing;
(c) All liabilities and obligations arising out of Seller for costs or relating to any supplemental executive retirement plan, program, arrangement or agreement;
(d) All liabilities and expenses incurred in connection obligations with this Agreement or respect to carried interest plans, phantom carried interest plans and similar arrangements unless the negotiation and consummation of related assets are transferred to Buyer pursuant to the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any All liabilities and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) obligations related to the extent arising out employment, termination of employment or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason potential employment of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities Person relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller period on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DateClosing;
(jf) any All liabilities and all Taxes obligations for severance (including statutory severance) or separation pay or benefits arising from or with respect to the Purchased Assets or the operation directly out of the Business that are incurred transactions contemplated by this Agreement and accruing in or attributable to any periodthe period before, or any portion of any period, ending on or prior to immediately following the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Closing;
(kg) any Liabilities of the Seller for Indebtedness;
(l) any All liabilities and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like obligations with respect to any employee of the Seller that who does not accept employment become a Transferred Employee with the Purchaser upon completion of the transaction contemplated by this Agreementrespect to any period;
(qh) All liabilities and obligations relating to any Excluded Asset;
(i) All liabilities and obligations with respect to any and all Liabilities Taxes of Seller (including Taxes pursuant to Section 9.9) and any new Taxes imposed on or with respect to the Business and the Acquired Assets for salaries, commissions, bonuses, deferred compensation all Pre-Closing Periods;
(j) All liabilities and obligations incurred by Buyer or like payments any of its Affiliates as a result of waiving Seller’s compliance with any “bulk sale” laws pursuant to Section 2.5;
(k) All liabilities and obligations of Seller to any director, officer current or employee former stockholder of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinSeller; and
(rl) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities liabilities and obligations of Sellerlisted on Schedule 2.4(k).
Appears in 1 contract
Sources: Asset Purchase Agreement (Silvercrest Asset Management Group Inc.)
Excluded Liabilities. Purchaser will Except to the extent specifically assumed hereunder and subject to the indemnification provisions of Article VII hereof, the parties to this Agreement expressly understand and agree that Buyer is not assume, or assuming and shall not be liable forfor any of the liabilities and obligations of eCalton, any liabilities including but not limited to the following, which are not Assumed Liabilities. All such expressly excluded from the liabilities which are not Assumed Liabilities shall be and obligations being assumed by Buyer hereunder (hereinafter referred to as “"Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:"):
(a) any and all Liabilities obligation or liability of and/or on behalf eCalton arising out of Seller for costs and expenses incurred this Agreement, any agreement entered into in connection with this Agreement herewith or the negotiation and consummation of the transactions contemplated by this Agreementhereby or thereby;
(b) any liabilities or obligations of eCalton for the fees and expenses of its counsel, accountants and other experts and all employee-related Liabilities other expenses incurred by eCalton incident to the negotiation, preparation and execution of Seller accrued or arising out this Agreement and the performance by eCalton of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsits obligations hereunder;
(c) any and all Liabilities of Seller for the provision of health plan continuation coverage liabilities or obligations under any Benefit Plans (as defined in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.13.01(g));
(d) any and all Liabilities owed toliabilities or obligations of eCalton arising out of or resulting from any business, activity, course of conduct, action or claims ofomission before, Seller’s creditors, whether arising before on or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do Date not otherwise constitute Assumed Liabilitiesspecifically assumed hereunder by Buyer;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation liability for (i) involving the Business, the Purchased Assets severance pay or Seller and existing as other remuneration or liability due to employees of eCalton by reason of termination of their employment or (ii) amounts payable to employees of eCalton in respect of operations of eCalton prior to the Closing Date, including amounts payable pursuant to employee benefit plans (including pension plans) of eCalton or (ii) under federal or state laws governing such plans, and employee expense accounts relating to the extent arising out operations of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or eCalton prior to the Closing Date;
(hf) any and all Liabilities relating liability for indebtedness owed to or arising out of Excluded Assets, including Excluded Contracts;Shareholders; and
(ig) any and all Liabilities for the return by any customer of Seller of products sold liability or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents obligation incurred prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding any other provision of this Agreement to the contrary, the Buyer is not assumeassuming any, and the Sellers are retaining, paying, performing, or be liable forotherwise satisfying all, any liabilities which are not Assumed Liabilities. All such liabilities which are not or causing their respective Affiliates to retain, pay, perform or otherwise satisfy all, Liabilities of the Sellers or their respective Affiliates (other than Sierra China) other than the Assumed Liabilities shall be referred to as “(the "Excluded Liabilities,” "), including, without limitation, the following (for the avoidance of doubt and notwithstanding anything in Section 2.3, all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following shall be deemed to be "Excluded Liabilities:" hereunder and none of the following shall be deemed to be "Assumed Liabilities" hereunder):
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses the Sellers or their respective Affiliates (other than Sierra China) incurred in connection with this Agreement or the negotiation any Related Documents and consummation of the transactions contemplated by this Agreementhereby and thereby;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: for (i) accrued salaries and wagesTaxes of the Sellers or any of their respective Affiliates (other than Sierra China), (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing DateDate including, and income and similar Taxeswithout limitation, of a type not described in Taxes allocable to Sellers pursuant to Section 7.119.1, that are imposed as a result of (iii) Taxes to be paid by the sale of the Purchased Assets Sellers pursuant to this Agreement Agreement, including Transfer Taxes pursuant to Section 9.2, and (exceptiv) payments under any Tax allocation, in sharing or similar agreement with any case, as otherwise provided in this Agreement)Seller or any Affiliate of the Sellers;
(kc) all Liabilities based on any Liabilities Legal Proceeding that (i) is currently pending as of the Seller for Indebtedness;
date hereof, (lii) has been filed as of the Closing Date, (iii) is based on substantially the same facts, circumstances or matters as any and all Liabilities Legal Proceeding that is currently pending or has been filed as of Seller under the Closing Date, including without limitation the matters listed on Schedule 2.4(h) or (iv) is based on circumstances, facts, events or matters that relate to any Contractperiod, other than the Purchased Contractsor any portion of any period, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller ending on or prior to the Closing Date, other than in respect of (i) though (iv) inclusive, the Assumed Liabilities;
(md) all Liabilities in respect of any current or former employee of the Sellers or any of its Affiliates (other than Sierra China), whether arising by Law or Contract or otherwise, including all Liabilities relating to or arising out of any employment action or practice in connection with the employment or termination of employment of any Persons currently or formerly employed or seeking to be employed by the Sellers or any of their respective Affiliates, other than the Assumed Liabilities;
(e) any Indebtedness of the Sellers and all Liabilities their respective Affiliates (other than Sierra China) outstanding as 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;
(nf) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller arising out of the injury to or death Sellers and their respective Affiliates (other than Sierra China) in respect 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 Contract 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 than the Seller, in each case, on or prior to the Closing DateAssigned Contracts;
(pg) any and all Liabilities of Seller for severance pay or the like with respect relating to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinExcluded Asset; and
(rh) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerspecifically set forth on Schedule 2.4(h).
Appears in 1 contract
Sources: Master Asset Purchase Agreement (Sierra Wireless Inc)
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) Notwithstanding anything to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Bodycontrary contained herein, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser Buyer is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller the Company or its Subsidiaries any Affiliate thereof (or any predecessor owner of all or part of the BusinessCompany’s business or assets) of whatever naturenature whether currently in existence or arising or asserted hereafter. All such other Liabilities shall be retained by and remain Liabilities of the Company and its Affiliates (all such Liabilities not being assumed are herein referred to as the “Excluded Liabilities”). Without limiting the foregoing, none of the following shall be Assumed Liabilities for purposes of this Agreement:
(i) all Excluded Taxes of the Company or its Affiliates;
(ii) all Indebtedness of the Company or its Affiliates;
(iii) all Liabilities relating to or arising out of the Company’s or Company’s Affiliate’s bonus plans, whether written or oral, including any promises to Company or its Affiliate’s employees, made or in effect prior to the Closing Date (the “Company Bonus Plans”);
(iv) all claims, causes of action, litigation and other rights of third parties relating to or arising out of (A) the Assumed Contracts, including, without limitation, any warranty or indemnity obligation of the Company or its Affiliates in respect of products sold or services rendered on or prior to the Closing Date or claims against the Company or its Affiliates directly related to the transfer of the Purchased Assets as contemplated by this Agreement or (B) the Excluded Assets, including, without limitation, any Contract that is not an Assumed Contract;
(v) all accounts payable and accrued expenses of the Company or its Affiliates (whether prior to or following the Closing),
(vi) all Liabilities of the Company or any Affiliate relating to or arising out of the Excluded Assets, including, without limitation, any Contract that is not an Assumed Contract;
(vii) all Liabilities relating to or arising out of the Assumed Contracts, including any warranty or indemnity obligation of the Company or any Affiliate, right of refund, rights of set off or other obligations or claims, solely in respect of Sellerproducts sold or services rendered on or prior to the Closing Date;
(viii) all Environmental Liabilities; and
(ix) all Liabilities relating to or arising out of the Company’s employment of the employees of the Company or engagement of contractors by the Company or employment of employees by the Affiliates or engagement of contractors by the Affiliates, including without limitation wages, commission, accrued vacation pay, performance and other bonuses, benefits and ownership interests.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Other than the Assumed Liabilities. All such liabilities which are , the Purchaser shall not Assumed assume or otherwise be responsible for any other Liabilities shall be referred to as of the Seller (collectively, the “Excluded Liabilities,” all of which ”). DGT and/or the Seller shall retain pay, perform and remain liable for (whether such discharge the Excluded Liabilities are known or unknownLiabilities. Without limiting the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each mean every Liability of the following LiabilitiesSeller other than the Assumed Liabilities including, without limitation:
(a) any and all Liabilities of and/or on behalf the Seller arising out of Seller for costs and expenses incurred in connection with this Agreement or relating to the negotiation and consummation operation of the transactions contemplated Business prior to the Closing Date which are neither (i) fully reflected on the Final Closing Balance Sheet as finally determined in accordance with Section 2.7, nor (ii) expressly assumed by the Purchaser under the terms of this Agreement;
(b) any and all employee-related Liabilities in respect of the Seller Owned Real Property (other than Liabilities of the Purchaser under the Lease), except to the extent the Seller accrued or arising out can demonstrate that any such Liabilities result from actions taken by the Purchaser in the operation of actionsthe Business on the Seller Owned Real Property (and not from the fact that the Purchaser will be an operator of the Real Property pursuant to any applicable Environmental, omissions or events occurring prior to or on Health and Safety Requirements) following the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities Liability of the Seller with respect to indebtedness for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1borrowed money;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any Liability of the Purchased Assets pursuant to Seller or DGT under this Agreement or under any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilitiesother agreement entered into by the Seller in connection with the consummation of the Contemplated Transactions;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between Liability of the Business, on Seller which relates to the one hand, and Seller Excluded Assets or any of its affiliates, on the other handExcluded Contract;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as Liability of the Closing Date, Seller or (ii) DGT to any shareholder or Affiliate of the extent arising out of Seller or resulting from the Excluded Assets or Excluded LiabilitiesDGT;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Acquired Assets or the operation of and the Business that are incurred in or attributable to any periodPre-Closing Tax Periods, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(lii) any and all Liabilities for Taxes of DGT, the Seller under or any Contract, other than the Purchased Contractsof their respective Affiliates for any taxable period, and 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;
(miii) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee Taxes of the Seller for which the period prior to the ClosingPurchaser is held liable as a transferee, except as otherwise expressly provided hereinsuccessor, by operation of law or otherwise; and
(rh) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to joint and several Liabilities of DGT or the contrarySeller, Purchaser is assuming only if any, imposed on either of them by virtue of being a member of a controlled group of corporations within the Assumed Liabilities and is not assuming any other Liability meaning of Seller or its Subsidiaries (or any predecessor owner Section 414(b) of all the Code or part of a trade or business under common control within the Businessmeaning of Section 414(c) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerthe Code.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, the Purchaser will shall not assume, assume or in any way be liable responsible for, any liabilities which are not and the Sellers shall remain obligated to pay, honor, perform and discharge, all of the Liabilities of the Sellers (other than the Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as ) (collectively, the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown”), absoluteincluding, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitieswithout limitation:
(a) any and all Liabilities arising out of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation relating to each Seller’s ownership, use or operation of the transactions contemplated Business and the Purchased Assets, in each case prior to the Closing arising by this Agreementoperation of law under any common law or statutory doctrine (other than the Assumed Liabilities);
(b) any and all employee-related Liabilities based upon, relating to, arising under or with respect to the Excluded Assets or the ownership, operation or use of Seller accrued any businesses of the Sellers or arising out any of actionstheir Affiliates, omissions other than the Business, whether before, at or events occurring prior to or on after the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsClosing;
(c) any all payables and all Liabilities indebtedness of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Sellers;
(d) any and all Liabilities owed to, directly or claims of, Seller’s creditors, whether indirectly arising before out of or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant related to any applicable bulk sales, bulk transfer breach of Contract occurring or similar laws and which do not otherwise constitute Assumed Liabilitiesexisting prior to the Closing;
(e) any and all Liabilities under any intercompany loans, accounts liabilities or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation obligations for (i) involving Taxes relating to the Business, the Purchased Assets or Seller and existing as of the Assumed Liabilities for the Pre-Closing DateTax Period, or (ii) Taxes relating to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental BodyBusiness, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of Assumed Liabilities for the Business that are incurred in or attributable to any period, or any portion of any period, Straddle Period ending on or prior to and including the Closing DateDate and (iii) any other Taxes of the Sellers or any of their equity holders or Affiliates, and income and similar Taxes, of a type not described in Section 7.11, including Taxes that are imposed arise as a result of the sale of the Business or the Purchased Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(kf) any Liabilities of the Seller for Indebtedness;
Sellers based upon, relating to, or arising under or with respect to (li) any and all Liabilities Seller Benefit Plan, (ii) the employment or termination of employment of (x) any employee of any Seller under any Contract, other than employed by the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller Purchaser following the Closing with respect to periods on or prior to the Closing Date;
and (my) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing at any time, and all Liabilities of Seller arising by reason of any violation or alleged violation of any Law (iii) workers’ compensation claims, unemployment insurance premiums or any requirement claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws of (x) any Governmental Body employee employed by the Purchaser following the Closing which relate to events occurring on or prior to the Closing Dateand (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing which relate to events occurring at any time;
(ng) any and any Liabilities for the return by any customer of Seller of products sold Liability based upon, arising under or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee Environmental Law, including any Liability of the Seller that does not accept employment with Sellers in any way pertaining to or arising from the Purchaser upon completion acts, omissions or strict liability of any predecessor of the transaction contemplated by this AgreementSellers;
(qh) any and all Liabilities of Seller for salariesLiability based upon, commissions, bonuses, deferred compensation arising under or like payments with respect to any director, officer matter disclosed or employee of the Seller for the period prior required to the Closing, except as otherwise expressly provided hereinbe disclosed in Schedule 5.16; andand 4306983-11
(ri) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement Liability based upon, arising under or with respect to any warranty given or sold by the contrarySellers, Purchaser is assuming only the Assumed Liabilities and is not assuming regardless of whether any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerwarranty claim has been made to date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) Notwithstanding anything to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Bodycontrary contained herein, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser Buyer is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller the Company or its Subsidiaries any Affiliate thereof (or any predecessor owner of all or part of the BusinessCompany’s business or assets) of whatever naturenature whether currently in existence or arising or asserted hereafter. All such other Liabilities shall be retained by and remain Liabilities of the Company and obligations Affiliates (all such Liabilities not being assumed are herein referred to as the “Excluded Liabilities”). Without limiting the foregoing, none of Sellerthe following shall be Assumed Liabilities for purposes of this Agreement:
(i) all Excluded Taxes;
(ii) all Indebtedness (other than as set forth in Section 2.2(a));
(iii) all claims, causes of action, litigation and other rights of third parties relating to or arising out of (A) the Assumed Contracts, including any warranty obligation of the Company, in respect of products sold or services rendered on or prior to the Closing Date or claims against the Company directly related to the transfer of the Purchased Assets as contemplated by this Agreement or (B) the Excluded Assets, including, without limitation, any Contract that is not an Assumed Contract;
(iv) all accounts payable and accrued expenses of the Company (whether prior to or following the Closing);
(v) all Liabilities relating to or arising out of the Excluded Assets, including, without limitation, any Contract that is not an Assumed Contract and any automobiles leased by the Company or its Affiliates;
(vi) all Liabilities relating to or arising out of the Assumed Contracts, including any warranty obligation of the Company, solely in respect of products sold or services rendered on or prior to the Closing Date;
(vii) all Environmental Liabilities; and
(viii) all Liabilities relating to or arising out of the Company’s employment of the employees of the Company, including wages, commission, accrued vacation pay, performance and other bonuses and ownership interests.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding anything contained herein to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable fordischarge any of the following liabilities or obligations of Sellers (collectively, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:”):
(a) any and all Liabilities liabilities or obligations arising out of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation relating to any Seller’s ownership or operation of the transactions contemplated by this AgreementBusiness and the Purchased Assets prior to the Closing other than the Assumed Liabilities;
(b) any and all employee-related Liabilities of Seller accrued liabilities or obligations to the extent relating to or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsExcluded Assets;
(c) any liabilities or obligations for (i) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, including any income taxes, and all Liabilities (ii) any other Taxes of Sellers or any equity holders or Affiliates of any Seller (other than Taxes allocated to Buyer under Section 6.12 or Section 6.13) for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1any taxable period;
(d) except as specifically provided in Section 6.3, any liabilities or obligations of a Seller relating to or arising out of (i) termination of employment of any Employee at or prior to the Closing, (ii) workers’ compensation claims of any Employee which relate to events occurring prior to the Closing, (iii) all discretionary Rentech Management Incentive Bonuses for 2016, which were accrued in the amount of $185,967, and for 2017, which were accrued through October 31, 2017 in the amount of $176,209 and which has been projected to be approximately $211,451 for all of calendar year 2017, and all Liabilities owed toChristmas Bonuses for 2017, which were accrued through October 31, 2017 in the amount of approximately $65,950, or claims of, Seller’s creditors, whether arising before or after (iv) the Closing Date, which may be asserted against Purchaser or payment of any of the Purchased Assets pursuant other bonus payable to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesEmployee upon the Closing;
(e) any costs or expenses of a Seller arising or incurred in connection with the negotiation, preparation, investigation or performance of this Agreement, the other Transaction Documents and all Liabilities under the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(f) any intercompany loans, accounts or Contracts payable between the Businessa Seller, on the one hand, and Seller Rentech or any an Affiliate of its affiliatesRentech (other than a Seller), on the other hand;
(f) any 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;; and
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities liabilities and obligations of Sellera Seller set forth on Section 2.4(g) of the Disclosure Schedules.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer does not hereby assume, and shall not at any time hereafter (including on or be after the Closing Date) become liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not of the Liabilities of Seller or any of its Affiliates or any ERISA Affiliate of any of the foregoing other than the Assumed Liabilities shall be referred to as “(the "Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing"). The Excluded Liabilities shall include, but not be limited towithout limitation, each of the following Liabilities:
(a) any and all Liabilities Liability of and/or on behalf any of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation any of its Affiliates or any ERISA Affiliate of any of the transactions contemplated by this Agreementforegoing whether currently in existence or arising hereafter that is not attributable to, or that does not arise out of the conduct of, the Business;
(b) any and all employee-related Liabilities of Seller accrued Liability whether presently in existence or arising out of actions, omissions or events occurring prior hereafter relating to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsan Excluded Asset;
(c) any and all Environmental Liability relating to the Business or the Transferred Assets, whether presently in existence or arising hereafter except Environmental Liabilities arising out of Seller for actions or inaction of Buyer after the provision of health plan continuation coverage in accordance with Closing Date (collectively, the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1"Excluded Environmental Liabilities");
(d) any and all Liabilities Liability whether currently in existence or arising hereafter relating to fees, commissions or expenses owed toto any broker, finder, investment banker, attorney or claims of, Seller’s creditors, whether arising before other intermediary or after the Closing Date, which may be asserted against Purchaser advisor employed by Seller or any of its Affiliates or their respective ERISA Affiliates in connection with the Purchased Assets pursuant to any applicable bulk sales, bulk transfer transactions contemplated hereby or similar laws and which do not otherwise constitute Assumed Liabilitiesotherwise;
(e) any and all Liabilities under Liability the existence of which constitutes a breach of any intercompany loans, accounts representation or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handwarranty hereunder;
(f) any and all contingent Liabilities relating of Seller related to litigation (i) involving the Business, the Purchased Assets or any transactions by Seller and existing as of the Closing Date, or (ii) prior to the extent arising out date hereof except Liabilities that Buyer has expressly agreed to assume pursuant to the terms of or resulting from the Excluded Assets or Excluded Liabilitiesthis Agreement;
(g) any and all Liabilities Liability related to indebtedness of Seller arising for borrowed money or capitalized leases, or the guarantee by reason Seller of the indebtedness of any violation of any Law or any requirement of any Governmental Bodyother Person, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing except as set forth on or prior to the Closing DateSchedule 2.04(g);
(h) any and all Liabilities relating to or Liability of Seller arising out of Excluded Assets, including Excluded Contractsunder this Agreement;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending Products manufactured on or prior to the Closing Date, and income and similar Taxesany Liability arising out of, resulting from, or relating to claims seeking return, replacement, and/or repair of a type not described in Section 7.11such Products pursuant either to (1) express product warranties extended by Seller prior to the Closing Date or by Buyer after the Closing Date (provided that Buyer's warranties are no more expansive than the warranties extended by Seller prior to the Closing Date) or (2) product warranties or obligations implied or provided by Applicable Law, that are imposed as a result except where such Liability constitutes an Assumed Liability under clause(c) of the sale of the Purchased Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);Schedule 2.03; and
(kj) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller with respect to Products manufactured on or prior to the Closing Date;
(m) , any and all Liabilities of Seller Liability 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service soldout of, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or writtenresulting from, or any implied warranty arising due relating to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 product 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerclaims.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding anything herein to the contrary, the Buyers shall not assume, or shall not be deemed by anything contained in this Agreement to have assumed, and shall not be liable for, in any liabilities which are not Assumed manner for any Excluded Liabilities. All such liabilities which are Without limiting the generality of the foregoing, the Buyers shall not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become dueassume, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesdeemed by anything contained in this Agreement to have assumed:
(ai) any and all Liabilities of and/or on behalf the Sellers or their Affiliates pursuant to this Agreement or in the Transaction Documents;
(ii) any Liabilities arising out of Seller for or relating to the fees, costs and expenses incurred of the Sellers or their Affiliates incurred, or for which the Sellers or their Affiliates will be liable, in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this AgreementAgreement and the other Transaction Documents, including all professional, accounting and consulting fees (collectively, “Transaction Expenses”);
(iii) any Liabilities for any Indebtedness incurred by the Sellers or their Affiliates as of or prior to the Closing Date, including any late charges or prepayment penalties or charges relating thereto or Taxes resulting from cancellation thereof, or in connection with the transactions contemplated hereby or by the Transaction Documents (other than any Taxes that are the responsibility of the Buyers pursuant to Section 2.07 or Section 2.09 hereof), including attorneys’, accountants’ and consultants’ fees, finders’ fees, costs and expenses, regardless of when incurred;
(iv) any Liabilities arising out of or relating to any of the Excluded Subsidiaries or Branch Offices;
(v) except for amounts due to Ancile for work completed by Ancile under the Company’s or RWD Canada’s Contracts with SAP America, Inc. and SAP Canada Inc., any Liabilities arising out of or relating to teaming arrangements, fees or secondment obligations with Ancile;
(vi) any Liabilities (other than obligations to be performed after Closing under Assumed Contracts (but not including obligations in respect of any period prior to Closing or in respect of goods sold or services provided or to have been provided prior to Closing)) arising out of or under the instruments, documents and agreements executed in connection with the Ancile Transaction, including but not limited to offer letters issued in connection with the Ancile Transaction;
(vii) any Liabilities arising out of or relating to (a) any Tax of any Seller, including any Liability for any of such Taxes resulting from the transactions contemplated hereby or by the Transaction Documents (other than any Taxes that are the responsibility of the Buyers pursuant to Section 2.07 or Section 2.09 hereof) and (b) any and all employeeTax of any Person (other than the Sellers) to the extent imposed on a Seller solely as a result of (A) the Seller being included in a combined, consolidated or unitary Tax group under Treasury Regulation Section 1.1502-related 6 (or any similar provision of any applicable Law), (B) transferee liability, (C) successor liability, or (D) a contractual obligation;
(viii) any Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior relating to any Liability or on the Closing Date, including, without limitation: demand (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(dasserted) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before threatened or after the Closing Date, which may be asserted against Purchaser pending Orders or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) Proceedings to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, period ending on or prior to the Closing Date, and income and similar Taxesincluding, of a type not described in Section 7.11without limitation, that are imposed as a result all Liabilities relating to or arising out of the sale of the Purchased Assets pursuant to this Agreement (exceptProceedings set forth on Schedule 5.08(e), in any case, as otherwise provided in this AgreementSchedule 5.15 and Schedule 5.18(b);
(kix) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller relating to any work, Contract, joint venture or other undertaking of the Sellers for any period ending on or prior to the Closing Date, including any warranty claims relating thereto;
(mx) any and all Liabilities arising out of or relating to any breach or violation or non-compliance with the Environmental Laws by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xi) any Liabilities arising out of or relating to any breach or violation or non-compliance with the Fair Labor Standards Act of 1938, as amended, or other applicable employment standards legislation, by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xii) any Liabilities arising out of or relating to any breach or violation or non-compliance with the TUPE Regulations by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xiii) any Liabilities (other than Taxes as contemplated in Section 2.07) arising out of or relating to any bulk transfer, bulk sales or similar Laws;
(xiv) any Liabilities arising out of or relating to any breach or violation of or noncompliance with any other Law by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xv) any Liabilities of Seller the Sellers to the direct or indirect equity holders of the Sellers or their other respective Affiliates;
(xvi) any Liabilities arising by reason out of or relating to the Excluded Assets;
(xvii) any violation Liabilities arising out of or alleged violation relating to any non-Business operations of any Law the Sellers or any requirement former operation of any Governmental Body on the Business that has been discontinued or disposed of at or prior to the Closing DateClosing;
(nxviii) any and subject to applicable UK law, including (for the avoidance of doubt) the TUPE Regulations, any Liabilities for the return by attributable to any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agentsBusiness Personnel who are not Transferred Personnel;
(oxix) except for payroll expenses accrued on the Closing Balance Sheet and unused, accrued paid time off balances for Transferred Employees, any Liabilities arising prior to or upon Closing with respect to the employment, engagement, termination of employment or engagement, compensation, severance, retention or employer benefits of any nature owed to any employees or consultants of any Seller (whether or not employed or engaged by any Buyer after Closing) that arise out of or relate to the employment or contracting arrangement (or termination of such relationship) between the Sellers and such individuals, including any obligations with respect to compensatory time off, wages, overtime and royalties (but excluding accrued commissions owed to Transferred Employees) owed to employees and consultants or under any Law covering equal employment opportunity, occupational health and safety, workers’ compensation or discrimination;
(xx) any Liabilities prior to or upon Closing arising out of or relating to any Employee Benefit Plan or Foreign Plan or any successor liability under ERISA or otherwise in connection with Liabilities arising prior to or upon Closing under any Employee Benefit Plan, including, without limitation, any deferred compensation or profit sharing plan and all any employer contributions thereto, but excluding items excepted under Section 2.03(b)(xix) above;
(xxi) any Liabilities under any Contract that is not an Assumed Contract;
(xxii) except as set forth in Section 2.03(a)(i) or 2.03(a)(iii), any Liabilities of the Seller RWD Canada or arising out of the injury to or death business 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 RWD Canada; and
(xxiii) any other legal or equitable theory Liabilities arising from or related to products (or parts or components thereof) sold, distributed or otherwise disposed out of or services performed by or on behalf relating to the operation of the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay Business or the like with respect to any employee ownership of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period Acquired Assets prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding including any provisions in this Agreement obligations with respect to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming services or goods rendered to any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerprior to Closing.
Appears in 1 contract
Excluded Liabilities. Notwithstanding any other provision of this Agreement or any other writing to the contrary, the Purchaser will not assume, or be liable for, any liabilities which and its Designated Affiliates are assuming only the Assumed Liabilities and are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as assuming any other Liability of the Seller or any Selling Affiliate of whatever nature, whether presently in existence or arising hereafter, including the following (the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:”):
(a) any and all Liabilities Liability for Taxes of and/or on behalf the Seller or any Affiliate of the Seller for costs and expenses incurred in connection with this Agreement arising or related to any pre-Closing period or attributable to the Business or the negotiation Purchased Assets for a Pre-Closing Period or otherwise allocated to a Pre-Closing Period pursuant to Section 9.1(c) (but specifically excluding (i) Taxes, if any, imposed on the Seller or any Affiliate or the Seller and consummation arising out of the transactions contemplated by this Agreementoperation of the Business or with respect to the Purchased Assets after the Closing Date, and (ii) Taxes imposed on the Purchaser pursuant to Section 9.1);
(b) any all trade accounts payable to third parties and all employee-related Liabilities other accrued expenses for the procurement of Seller accrued or goods and services arising out from the conduct of actions, omissions or events occurring the Business after the Petition Date and prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsthe “Trade Accounts Payable”);
(c) any all trade accounts payable to third parties and all Liabilities other accrued expenses for the procurement of goods and services arising from the conduct of Seller for Affiliates located in Europe or Asia (other than the provision of health plan continuation coverage in accordance with Acquired Company) after the requirements of COBRA Petition Date and Sections 601 through 608 of ERISA prior to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant the Closing that are attributable to Section 8.1;the Business (the “European Trade Accounts Payable”)
(d) all shared accounts payable to third parties for the procurement of goods and services arising from the conduct of both the Business and the Seller or any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or Affiliate of the Seller after the Petition Date and prior to the Closing Date, which may be asserted against Purchaser or any of (the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities“Shared Accounts Payable”);
(e) all accrued payroll and accrued benefits relating to the employment of Transferred Employees on or prior to the Closing Date (the “Accrued Payroll and Benefits”);
(f) any Liability arising in connection with any Seller Plan, other than those Liabilities assumed by the Purchaser and its Affiliates pursuant to Article 10;
(g) any Liability arising out of or related to any Excluded Asset;
(h) all Liabilities under intercompany payables, loans and investments (i) between Seller or any intercompany loans, accounts or Contracts between the Businessof its Subsidiaries, on the one hand, and Seller or any of its affiliatesSubsidiaries, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) required to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or be settled in connection accordance with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;Section 5.19; and
(i) any all Encumbrances of which the Purchased Assets are being sold free and all Liabilities for clear under the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DateApproval Order;
(j) any and Proceedings set forth in Schedule 2.4(j) or filed after the date hereof relating exclusively to pre-Closing activity of the Business (other than a Proceeding to the extent relating to Assumed Liabilities);
(k) all Taxes Liabilities arising out of or relating to the off-site transportation, handling, treatment, storage or disposal of any Hazardous Material (other than migration of a Hazardous Material from any Owned Real Property) or the arrangement for the same by or on behalf of the Seller, its Affiliates or their respective predecessors in connection with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any periodat the Taft, or any portion of any period, ending on or Louisiana facility prior to Closing (the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement“Off-Site Liabilities”);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities arising out of or relating to fines and penalties assessed for any violation occurring prior to Closing of any Environmental Law or Environmental Authorization by Seller under any Contractor related to the Business or the Purchased Assets, other than the Purchased Contracts, and any and all such Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller on or prior relating to the Closing Date▇▇▇▇ Air Issue (the “Compliance Liabilities”);
(m) any and all Liabilities arising out of Seller or relating to fines and penalties arising by reason out of any violation or alleged violation related to the ▇▇▇▇ Air Issue occurring prior to Closing (regardless of any Law whether such fines or any requirement of any Governmental Body penalties were assessed prior to, on or prior to after the Closing Date;Closing) (the “▇▇▇▇ Air Issue Fines and Penalties”); and
(n) any and any all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior relating to the Closing or employment of employees and former employees of the Business who are not Transferred Employees. For purposes of clarity, the Excluded Liabilities do not include any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller arising out Acquired Company, all of which will remain Liabilities of the injury to Acquired Company before, 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the after Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Notwithstanding any other provision of this Agreement, except for the Assumed Liabilities expressly specified in Section 2.2, Purchaser will shall not assume, or otherwise be liable responsible for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (any Seller, whether such Excluded Liabilities are liquidated or unliquidated, or known or unknown, absolutewhether arising out of occurrences prior to, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before at or after the Closingdate hereof (the "Excluded Liabilities"). , which Excluded Liabilities shall include, but not be limited towithout limitation, each of the following Liabilitiesfollowing:
(a) except as otherwise expressly provided in Section 7.6, any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior Liability to or on the Closing Date, including, in respect of any employees or former employees of any Seller including without limitation: limitation (i) accrued salaries any employment agreement, whether or not written, between any Seller and wagesany person, (ii) accrued vacation and sick payany Liability under any Employee Benefit Plan at any time maintained, contributed to or required to be contributed to by or with respect to any Seller or under which any Seller may incur Liability, or any contributions, benefits or Liabilities therefor, or any Liability with respect to any Seller's withdrawal or partial withdrawal from or termination of any Employee Benefit Plan, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges any claim of an unfair labor practicespractice, or (vi) any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination complaints;
(c) 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 to employees of Seller, regardless of whether law or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Dateregulation, which may be shall have been asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product is based on acts or service sold, distributed or performed, as the case may be, by Seller omissions which occurred on or prior to the Closing Date based on and (iv) any express warranty liabilities or implied warranty arising due obligations under the Worker Adjustment and Retraining Notification Act of 1988, as amended, including the rules and regulations promulgated thereunder;
(b) any Liability of any Seller in respect of (i) any income tax or any interest, penalties or additions pertaining thereto, (ii) any other Tax relating to the statements any period or conduct of Seller or Seller’s employees or agents portion thereof prior to the Closing Datedate of the Interim Balance Sheet and not reflected on the Interim Balance Sheet or (iii) any other Tax relating to any period or portion thereof from the date of the Interim Balance Sheet unless such Tax is incurred (A) in the ordinary course of business consistent with past practice and (B) in compliance with the terms of this Agreement;
(jc) any warranty claims and all Taxes any Liability arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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, express or implied representation, strict liability, enterprise liability or any other legal or equitable theory arising from defects in products manufactured or related to products (or parts or components thereof) sold, distributed or otherwise disposed of or from services performed by or on behalf of the Seller, in each case, any Seller or any other person or entity on or prior to the Closing Date;
(pd) any Liability of any Seller arising out of or related to any Action against any Seller or any Action which adversely affects the Assets and all Liabilities which shall have been asserted on or prior to the Closing Date or the basis of which shall have arisen on or prior to the Closing Date;
(e) any Liability of any Seller resulting from entering into, performing its obligations pursuant to or consummating the transactions contemplated by, this Agreement (including without limitation any Liability of any Seller for severance pay fees or expenses incurred in connection with such transactions and any Liability of any Seller pursuant to Article XI hereof);
(f) any Liability related to any Former Facility or any of the like Discontinued Operations;
(g) any Financing Obligation
(h) any Environmental Liabilities for Pre-Closing Matters, whether or not disclosed in the Disclosure Schedule;
(i) any Liability of any Seller for fees or expenses incurred in connection with the review by ▇▇▇▇ & ▇▇▇ of the financial statements of Sellers;
(j) any Liability of any Seller not directly related or incurred with respect to any employee the conduct of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this AgreementBusiness;
(qk) except to the extent provided for herein, any indebtedness for borrowed money;
(l) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments amounts payable to any director, officer or employee Affiliate of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinany Seller;
(m) any cash overdraft liability; and
(rn) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement liabilities accruing prior to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerClosing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vdi Media)
Excluded Liabilities. Purchaser will not assume, or be liable for, Notwithstanding any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred provision in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) writing to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
contrary (g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Bodyincluding in particular Section 2.4), including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser Buyer is assuming only the Assumed Liabilities and is not assuming or agreeing to pay, perform or otherwise discharge any other Liability of Seller liability or its Subsidiaries (or any predecessor owner of all or part obligation of the Business) Selling Companies of whatever nature. All such other Liabilities any kind, all of which shall be retained by and remain Liabilities liabilities and obligations of Sellerthe Selling Companies (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, the Selling Companies shall remain liable and responsible for paying, performing and discharging when due the following liabilities and obligations:
(a) all liabilities and obligations arising out of or relating to the ownership, operation or maintenance of the Business prior to or on the Closing Date (including any claims in the nature of an errors and omissions insurance claim relating to the periods prior to or on the Closing Date);
(b) any Indebtedness of the Selling Companies as of the Closing Date;
(c) all Excluded Taxes and all liabilities and obligations in respect of Taxes for which the Selling Companies are liable pursuant to Section 8.1(a);
(d) except to the extent expressly provided in Section 7.8, all liabilities and obligations of the Selling Companies arising out of or relating to employee benefits or compensation arrangements existing prior to or on the Closing Date, including all liabilities and obligations under any Employee Benefit Plans and any employment agreements with Company Employees;
(e) all liabilities and obligations of the Selling Companies arising out of or relating to the Contracts sold, transferred, assigned, conveyed and delivered to Buyer pursuant to Section 2.2 that, but for a breach or default by a Selling Company, would have been paid, performed or otherwise discharged in accordance with their terms prior to or on the Closing Date;
(f) all liabilities and obligations arising out of or relating to the Actions required to be listed on Schedule 4.13;
(g) all liabilities and obligations arising out of or relating to the ownership, use or occupation of the Retained Premises by any Company prior to or on the Closing Date;
(h) all liabilities and obligations arising out of or relating to the conduct of the Business or any other activity of the Companies prior to or on the Closing Date, in each case arising under or imposed by any Environmental Laws;
(i) all liabilities and obligations arising out of or with respect to any claims by any past or present employees of the Companies with respect to any personal injuries, including workers’ compensation or permanent disability, allegedly arising as a result of exposure to any Hazardous Materials or other occupational hazard during their employment by the Companies, which exposure occurred prior to or on the Closing Date;
(j) any amounts owed by a Selling Company to another Selling Company or to an Affiliate as of the Closing Date;
(k) all costs and expenses incurred by the Selling Companies and their Affiliates incident to their negotiation, preparation, execution and delivery of this Agreement and their performance and compliance with the terms and conditions contained herein;
(l) any broker, finder, investment banker or other intermediary fees or commissions that may become payable in connection with the Contemplated Transactions based upon arrangements made by or on behalf of Sellers;
(m) all liabilities and obligations arising out of or relating to any Excluded Asset; and
(n) any other liabilities and obligations set forth on Schedule 2.5.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Hub International LTD)
Excluded Liabilities. Purchaser The Parties acknowledge and agree that Apollomics will not assume, assume any Liabilities of Nuance or be liable for, any liabilities which are not of its Affiliates other than Assumed Liabilities. All such liabilities which are not , and that Nuance and its Affiliates will remain responsible for all the Liabilities of Nuance and its Affiliates other than the Assumed Liabilities shall be referred to as (such liabilities, “Excluded Liabilities,” all ”). The assumption by Apollomics of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims any Assumed Liability will not enlarge the rights of any Third Party with respect thereto are asserted before to any Assumed Liability, nor will it prevent Apollomics, with respect to any Person other than Nuance and its Affiliates, from contesting or after the Closing)disputing in good faith any Assumed Liability. No assumption by Apollomics of any Assumed Liability will relieve or be deemed to relieve Nuance from any contractual obligation or Liability under this Agreement or any Ancillary Agreement with respect to any representations, warranties, covenants and agreements contained herein or therein. Excluded Liabilities shall will also include, but and Apollomics will not be limited toassume as an Assumed Liability, each of the following Liabilities:
(a) any except as set forth in Section 2.4 (Sales and Transfer Taxes), all Liabilities for Taxes (i) of and/or on behalf Nuance or (ii) arising out of, relating to or in respect of Seller the Acquired Assets or the Assumed Liabilities for costs any Pre-Closing Tax Period;
(b) any Liability of Nuance or any of its Affiliates under this Agreement, any Ancillary Agreement, and expenses incurred any other agreement entered into by Nuance or its Affiliates in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) , and any Liability of Nuance or any of its Affiliates for expenses and all employee-related Liabilities of Seller accrued or fees arising out of actionsthe negotiation, omissions or events occurring prior to or on the Closing Datepreparation, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practicesapproval, or authorization of this Agreement or the consummation (vior preparation for the consummation) discrimination complaintsof the transactions contemplated hereby (including all attorneys’ and accountants’ fees and brokerage fees (if any));
(c) any Liability, obligation, or commitment of Nuance or any of its Affiliates, including Liabilities for (i) product liability, (ii) liability for adverse reactions, liability for recalls, liability for product and all Liabilities packaging complaints, whether direct or as a result of Seller for successor liability, (iii) death or personal injury, or (iv) infringement or misappropriation; in each case ((i) - (iv)), arising prior to, on, or after the provision Closing Date to the extent arising from any Exploitation of health plan continuation coverage in accordance with the requirements Products by or on behalf of COBRA and Sections 601 through 608 Nuance or any of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;its Affiliates; and
(d) any and all Liabilities owed liability, obligation, or commitment arising prior to, or claims ofon, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) any and all Liabilities of Seller arising by reason of any violation or alleged violation of any Applicable Law or any requirement of any Governmental Body on or prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller extent arising out of any Exploitation 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 Products by or on behalf of the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (Nuance or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerits Affiliates.
Appears in 1 contract
Sources: Technology Transfer and Co Development Agreement (Apollomics Inc.)
Excluded Liabilities. Purchaser will not assume, Under no circumstance shall Purchasers assume or be obligated to pay, and none of the Purchased Assets shall be or become liable forfor or subject to, any and all liabilities which are not of any Seller other than the Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (, whether such Excluded Liabilities are known or unknown, absolute, fixed or contingent, liquidated recorded or unliquidated, due or to become dueunrecorded, and whether claims with respect thereto are asserted before arising prior to or after Closing (the Closing"Excluded Liabilities"). Excluded Liabilities , which shall includebe, but not be limited tobecome and remain liabilities and obligations of Sellers (subject to Section 14.2(a)(iii)), each of the following Liabilitiesincluding, without limitation:
(a) any and other than those included in Section 3.1 and/or Net Working Capital, all Liabilities liabilities accrued on the Closing Balance Sheets;
(b) liabilities or obligations of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement Sellers, the Subsidiary or the negotiation and Joint Venture for Taxes in respect of periods ending on or prior to the Closing Date or resulting from the consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsherein;
(c) liabilities or obligations associated with any Excluded Assets and all Liabilities of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA liabilities and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any obligations of the Purchased Assets pursuant Joint Venture arising prior to any applicable bulk sales, bulk transfer Closing or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating with respect 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or periods prior to the Closing Date;
(hd) liabilities or obligations associated with any and all Liabilities relating to indebtedness of Sellers or arising out of Excluded Assetsthe Subsidiary for borrowed money, including Excluded Contractsexcept the indebtedness, if any, expressly described on Schedule 3.1.6;
(ie) liabilities or obligations accruing under any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or Assumed Contracts prior to the Closing Date or for a warranty claim for resulting from any product breach or service sold, distributed or performed, as the case may be, by Seller on or default prior to the Closing Date of any Assumed Contracts or of other Assumed Liabilities, and liabilities arising out of any improper assignment to Purchasers at Closing of any Assumed Contracts and liabilities arising under any Contracts not Assumed Contracts;
(f) liabilities or obligations arising out of or in connection with Third Party Claims, litigation or proceedings currently pending or which arise on or after the Closing Date arising out of or based on any express warranty upon acts or implied warranty arising due omissions of Sellers or its Affiliates which occurred prior to the statements or conduct of Seller or Seller’s employees or agents Closing Date, including litigation and final actions relating to peer review activities at the Baptist Hospitals prior to the Closing Date;
(jg) liabilities or obligations under the ▇▇▇▇-▇▇▇▇▇▇ Act or other restricted grant or loan programs;
(h) except to the extent included in Net Working Capital on the Closing Balance Sheets or assumed by Purchasers with a Purchase Price credit pursuant to Section 4.2, and except for obligations under the Contracts specified in Schedule 11.5 as being assumed by Purchasers, liabilities or obligations to Sellers' employees, Employee Benefit Plans, the Internal Revenue Service, PBGC or any and all Taxes other Governmental Authority, arising from or with respect relating to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or periods prior to Closing (whether or not triggered by the Closing Datetransactions contemplated by this Agreement), including liabilities or obligations arising under any Employee Benefit Plan, severance, bonus or incentive pay program or arrangement, EEOC claim, unfair labor practice, and income wage and similar Taxeshour practice, of a type not described in Section 7.11and liabilities or obligations arising under the Worker Adjustment and Retraining Act, that are imposed 29 U.S.C. 2101-2109, as a result of the sale acts of the Purchased Assets pursuant any Seller prior to this Agreement Closing (except, in any case, except as otherwise provided in this AgreementSection 12.1.2);
(ki) any Liabilities of the Seller for Indebtedness;
(l) any and Cost Report settlement payables relating to all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller Cost Report periods ending on or prior to before the Closing Date;
(mj) any liabilities and all Liabilities obligations associated with the ownership, operation, management, control or bankruptcy of Seller arising by reason of any violation the PHO, whether such liabilities or alleged violation of any Law or any requirement of any Governmental Body on or obligations arise prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the after Closing, except as otherwise expressly provided herein; and
(rk) all Excluded Pre-Petition Liabilities. Notwithstanding penalties, fines, settlements, interest, costs and expenses arising out of or incurred as a result of any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming Third Party Claim alleging a violation by any other Liability Seller of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerLegal Requirement.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are or obligations of Seller not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred expressly assumed by Buyer pursuant to as “Section 4.03 (collectively, the "Excluded Liabilities,” "), including all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following LiabilitiesLiabilities and obligations:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation obligations of the transactions contemplated by this AgreementSeller, other than the Assumed Liabilities;
(b) any Liabilities or obligations for (i) Taxes relating to the operation of the Business or ownership or use of the SpinCo Assets or Purchased Assets on or prior to the Effective Time and all employee-related Liabilities (ii) any other Taxes of Seller accrued or any stockholders or Affiliates of Seller (including Taxes allocated to Seller under Section 8.15 and Taxes arising out of actionsor in connection with the Internal Reorganization, omissions Distribution or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsMerger);
(c) except as specifically provided in Section 8.05, any and all Liabilities or obligations of Seller for relating to or arising out of (i) the provision employment, or termination of health plan continuation coverage in accordance with employment, (A) of any Employee on or prior to the requirements Effective Time, or, (B) of COBRA and Sections 601 through 608 any Employees who are not Transferred Employees, after the Closing, or (ii) workers' compensation claims or any other claims of ERISA any Employee which relate to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant events occurring prior to Section 8.1the Effective Time;
(d) except as specifically provided in Section 8.05, any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser obligation of Seller or any of the Purchased Assets pursuant its current or former Affiliates relating to or arising out of Benefit Plans or Seller's or any applicable bulk sales, bulk transfer of its current or similar laws and which do not otherwise constitute Assumed Liabilitiesformer Affiliates' employment of any employee or other service provider;
(e) any Liabilities or obligations of Seller arising or incurred in connection with the negotiation, preparation, investigation and all Liabilities under any intercompany loansperformance of this Agreement, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handTransaction Documents and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others;
(f) any and all Liabilities Liability for any Action or threatened Action relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) to the extent Business arising out of transactions or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances events occurring or existing on or prior to the Closing Date;
(hg) any and all Liabilities relating to Liability for any Action or arising out threatened Action brought by any stockholder of Excluded AssetsSeller, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or in connection with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of and the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction transactions contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinthereby; and
(rh) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerrelating to Specified Benefits.
Appears in 1 contract
Sources: Purchase and Assumption Agreement and Plan of Merger (Customers Bancorp, Inc.)
Excluded Liabilities. Purchaser will Notwithstanding any other provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform or discharge any Liabilities of Seller, Principals, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not of their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” ”). Seller shall, and shall cause Principals and each of their respective Affiliates to, pay and satisfy in due course all of which Seller shall retain and remain liable for (whether such Excluded Liabilities which they are known or unknownobligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(aw) any and all Liabilities of and/or on behalf of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement or Agreement, the negotiation other Transaction Documents and consummation of the transactions contemplated by this Agreement;
(b) any hereby and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Datethereby, including, without limitation: , fees and expenses of counsel, accountants, consultants, advisers and others;
(x) any Liability for (i) accrued salaries and wages, Taxes of Seller (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practicesor Principals, or (vi) discrimination complaints;
(c) 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 to employees stockholder or Affiliate of Seller, regardless of whether ) or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing the Assumed Liabilities for any Pre-Closing Tax Period, including, without limitation, any roll-back taxes the obligation for which arises after Closing as a result of any change in the use of the Closing Date, or Real Property occurring prior to Closing; (ii) Taxes of Seller (or Principals, or any stockholder or Affiliate of Seller) that arise out of the consummation of the transactions contemplated hereby, except as otherwise set forth in this Agreement; or (iii) other Taxes of Seller (or Principals, or any stockholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or Principals, or any stockholder or Affiliate of Seller) for any Pre-Closing Tax Period that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(y) any Liabilities relating to the extent or arising out of or resulting from the Excluded Assets or Excluded LiabilitiesAssets;
(gz) any and all Liabilities of Seller arising by reason in respect of any violation of any Law pending or any requirement of any Governmental Bodythreatened Action arising out of, including all Liabilities arising from, related relating to or otherwise in connection with FCC enforcement actions, in each case, respect of the operation of the Business or the Purchased Assets to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(haa) any and all Liabilities relating product Liability or similar claim for injury to a Person or arising property which arises out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date is based on upon any express warranty or implied warranty arising due to the statements representation, warranty, agreement or conduct of Seller or guaranty made by Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) any and all Liabilities of Seller arising by reason of any violation the improper performance or alleged violation malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any Law products at any time manufactured or sold or any requirement of any Governmental Body on or prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions provision in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming assuming, and shall not be deemed to have assumed, any other Liability Liabilities of Seller or its Subsidiaries (or any predecessor of Seller or any prior owner of all or part of its business and assets) of whatever nature (whether arising prior to, at the time of, or subsequent to Closing) and Seller shall be solely and exclusively liable for any and all such Liabilities, including those relating to, arising out of or in connection with the operation of the Business or the Purchased Assets (including the use and ownership thereof) at any time prior to the Closing Date, and those Liabilities set forth below (collectively, the “Excluded Liabilities”):
(a) all Liabilities of Seller relating to or otherwise arising, whether before, on or after the Closing, out of, or in connection with, any of the Excluded Assets;
(b) any and all Liabilities of Seller in respect of Contracts that are Non-Assigned Contracts;
(c) any and all Liabilities with respect to any environmental, health or safety matter, relating to, arising out of or in connection with (i) Seller’s operation of its businesses (other than the Business) or its leasing, ownership or operation of whatever nature. All such other real property at any time, or (ii) the operation of the Business or the Purchased Assets on or prior to the Closing Date;
(d) all Liabilities shall be retained of Seller in respect of Indebtedness, whether or not relating to the Business or the Purchased Assets, including without limitation that certain Loan Agreement by and remain between Seller and Ahn-Gook Pharmaceutical Company, Ltd. dated as of October 30, 2009;
(e) all warranty and return obligations, including, without limitation, all Liabilities and obligations to repair or replace, or to refund the sales price (or any other related expenses) for inventory sold prior to the Closing Date;
(f) any and all Liabilities for Taxes arising in connection with the transactions contemplated by this Agreement;
(g) any and all Liabilities for Taxes attributable to the operation of the Business on or prior to the Closing Date;
(h) any and all Liabilities of Seller in respect of the WARN Act or under any similar provision of any federal, state, provincial, regional, foreign or local Law that might arise or have arisen on or prior to the Closing Date;
(i) any and all Liabilities of Seller in respect of the Employees, Seller’s officers and directors, or the Seller Plans;
(j) any and all Liabilities of Seller in respect of any Actions;
(k) any costs and expenses related to the Bankruptcy Case; and
(l) all Liabilities set forth on Schedule 1.4(l).
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding anything to the contrary herein, Buyer shall not assumeassume and shall not be responsible to pay, perform, discharge when due or be otherwise become responsible or liable forfor any of the following liabilities or obligations of Seller and its Subsidiaries (collectively, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:”):
(a) any and all Liabilities arising out of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation relating to ownership of the transactions contemplated Purchased Assets accrued prior to the Closing Date and not specifically assumed by this AgreementBuyer as an Assumed Liability;
(b) any and all employee-related Liabilities of Seller accrued relating to or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsExcluded Assets;
(c) any and except as provided in Section 6.02, all Liabilities relating to or arising out of Seller for (i) the provision employment, termination of health plan continuation coverage in accordance employment, employee benefits, compensation or other arrangements with respect to any Business Employee prior to the requirements Closing Date, (ii) workers’ compensation claims of COBRA and Sections 601 through 608 any Business Employee which relate to events occurring prior to the Closing Date or (iii) all equity-based compensation of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1any Business Employee;
(d) any Liabilities arising out of or incurred in connection with the negotiation, preparation, investigation and all Liabilities owed toperformance of this Agreement, or claims ofthe other Transaction Documents and the transactions contemplated hereby and thereby, Seller’s creditorsincluding, whether arising before or after the Closing Datewithout limitation, which may be asserted against Purchaser or any fees and expenses of the Purchased Assets pursuant to any applicable bulk salescounsel, bulk transfer or similar laws accountants, consultants, advisers and which do not otherwise constitute Assumed Liabilitiesothers;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between set forth in Section 2.04(e) of the Business, on the one hand, and Seller or any of its affiliates, on the other handDisclosure Schedules;
(f) any 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 relating to any return, chargeback, rebate, customer charge or other similar expense, or Recall of any Product sold by or on behalf of Seller or its Subsidiaries prior to the Excluded Assets or Excluded LiabilitiesClosing Date;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising fromout of or relating to any product liability, breach of warranty or similar claim for injury or other harm to person or property, regardless of when asserted, which result from the use or misuse of Products or otherwise related to the Products (including all proceedings relating to any such liabilities) sold by or in connection with FCC enforcement actions, in each case, to the extent such Liability results from on behalf of Seller or arises out of events, facts or circumstances occurring or existing on or its Subsidiaries prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) or relating to any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior proceeding relating to the Closing Date Purchased Assets or the Business for a warranty claim for any product or service sold, distributed or performed, as which the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct cause of Seller or Seller’s employees or agents action arose prior to the Closing Date;
(i) all Liabilities of Seller to purchase the equity of or make an investment in CASI Pharmaceuticals, Inc. or any other party;
(j) any and all Taxes arising from or with respect Liabilities of Seller to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)▇▇▇▇▇▇▇▇▇ LLC;
(k) any all Liabilities of RIT Oncology, LLC prior to the Seller Closing, including for Indebtednessclarity, all Tax Liabilities, except Liabilities arising out of the Assigned Contracts after the Closing;
(l) any and all Liabilities the POs identified in Section 2.04(l) of Seller under any Contract, other than the Purchased Contracts, Disclosure Schedules and any and all Liabilities POs dated December 31, 2018 or earlier that are not set forth in Section 4.06(e) of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller on or prior to the Closing DateDisclosure Schedules;
(m) 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 its Subsidiaries that do not constitute the Closing Date;Assumed Liabilities; and
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellercompleted R&D Activities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spectrum Pharmaceuticals Inc)
Excluded Liabilities. Except for the Assumed Liabilities, Purchaser will shall not assumeassume or be bound by any obligations or liabilities of Seller of any kind or nature, known, unknown, accrued, absolute, fixed, contingent, or be liable forotherwise, any liabilities which are whether or not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as existing or hereafter arising whatsoever (the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown”), absoluteincluding, contingentwithout limitation, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) liabilities for Taxes arising out of or resulting from the sale, conveyance, transfer, assignment and delivery of the Purchased Assets provided for in this Agreement, including, without limitation, Transfer Taxes;
(b) all Taxes imposed on, collected by or withheld with respect to, or in any way related to the Business or the Purchased Assets for any periods prior to and including the Closing Date;
(c) all Liabilities of and/or on behalf Taxes imposed on, collected by or withheld with respect to, or in any way related to Seller or the Members;
(d) liabilities or obligations of Seller in respect of indebtedness for costs borrowed money or any other notes payable;
(e) liabilities and expenses incurred obligations of Seller in connection with this Agreement or relating to any of Seller’s existing or former employees and Employee Programs, including, without limitation, any “stay bonus,” severance or other termination obligations;
(f) liabilities and obligations of Seller to third parties arising out of any breach by Seller on or prior to the negotiation Closing Date of any representation, warranty, or covenant of Seller under any Assigned Contract or other agreement;
(g) any Liens on the Purchased Assets;
(h) any liabilities and consummation obligations of Seller arising from the transactions contemplated by this Agreement;
(bi) all liabilities and obligations arising in respect of the Excluded Assets;
(j) any and all employee-liabilities related Liabilities of Seller accrued to Hazardous Substances or arising out of actions, omissions other materials existing on or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities of Seller for liabilities related to the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees generation, transportation, placement, storage, treatment, use and/or disposal by Seller, or any predecessors of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law Hazardous Substances or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller other materials on or prior to the Closing Date at facilities and/or real property that are or for a warranty claim for were at any product time owned, leased or service sold, distributed or performed, as the case may be, otherwise occupied by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct predecessor of Seller or Seller’s employees or agents prior to the Closing Date;
(j) . “Hazardous Substances” shall mean any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any periodpollutants, contaminants, radioactive substances, toxic substances, hazardous materials, hazardous substances, hazardous wastes, petroleum or any portion of any periodfraction or by-product thereof, ending on or prior to the Closing Date, asbestos and income and similar Taxes, of a type not described in Section 7.11, that polychlorinated biphenyls (“PCBs”) as such terms are imposed as a result of the sale of the Purchased Assets defined pursuant to this Agreement (exceptor within the Environmental, in any case, as otherwise provided in this Agreement)Health and Safety Laws;
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Blonder Tongue Laboratories Inc)
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Except for the Assumed Liabilities. All such liabilities which are , the Buyer shall not Assumed Liabilities assume and the Buyer shall not be referred obligated to as “Excluded Liabilities,” all pay, perform or discharge any liabilities, debts, claims, expenses or obligations of which Seller shall retain and remain liable for any kind or nature (whether such Excluded Liabilities are known or unknown, absolutevested or unvested, asserted or unasserted, absolute or contingent, accrued or unaccrued, assessed or unassessed, liquidated or unliquidated, actual or potential, or due or to become due), all of which liabilities, debts, claims, expenses and obligations shall be retained by Seller (collectively the “Excluded Liabilities”) including but not limited to the following:
(i) any claims, whether founded upon contract, tort, statute, regulation, breach of warranty, or any other grounds, and whether claims with respect thereto are asserted made before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement which relate to or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising arise out of actionsproducts manufactured, omissions distributed or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities of sold by Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(hii) obligations of any and all Liabilities relating kind or nature to any employee or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed former employee employed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date which are based on any express warranty facts occurring or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or circumstances existing prior to the Closing Date, including, but not limited to, those wages, employment fees, fringe benefits, or other payments owing under or with respect to (A) any severance policy, employment agreement, employee benefit, welfare or retirement plans (including but not limited to, those arising under the Employee Retirement Income Security Act of 1974) or other contract relating to the terms and income conditions of employment of an employee or other employees of Seller, (B) any federal, state, or local law relating to the termination of employment of employees in connection with a transaction of the type contemplated hereunder, and similar (C) any workers’ compensation claim;
(iii) any liabilities under debt instruments, loan documents, indentures, guaranties or other indebtedness for borrowed money from any bank or financial institution;
(iv) Taxes, of a type not described in Section 7.11, that are imposed as a result fees or expenses of the sale of Seller incurred with respect to the transactions contemplated herein;
(v) all Losses to the extent relating to the Business, the Purchased Assets pursuant or any activities or operations occurring or conducted at or from the Real Property (including offsite disposal) prior to this Agreement (exceptClosing which arise under or are based upon any Environmental Law and all Losses in connection with any Hazardous Substances at any time present at the Real Property prior to Closing, in any case, as otherwise provided in this Agreement)regardless of source or cause;
(kvi) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit Losses arising out of a breach product liability claims relating to any damage to Persons or alleged breach thereof by Seller on or prior property to the Closing Date;
(m) any and all Liabilities extent caused by products 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;
(n) any and any Liabilities for the return by any customer of Seller of products Business sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period manufactured prior to the Closing, except as otherwise expressly provided herein; and
(rvii) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement liabilities to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part extent arising out of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerRetained Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coolbrands International Inc)
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Except for the Assumed Liabilities. All such liabilities which are , Purchaser shall not Assumed assume and shall not be responsible to pay, perform, satisfy or discharge any Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (or any of its Affiliates of any kind or nature whatsoever, whether such Excluded Liabilities are direct or indirect, known or unknown, absolute, absolute or contingent, liquidated relating to the construction, ownership, operation or unliquidatedmaintenance of the Project, due the Project Assets or the Project Site prior to become duethe Closing (collectively, the “Excluded Liabilities”). On and whether claims with respect thereto are asserted before or after the Closing). , Seller shall, and shall cause each of its Affiliates to, retain, pay, perform, satisfy and discharge all Excluded Liabilities shall includefor which it or they are respectively obligated, but not be limited to, each including the following: all Liabilities arising from any violation of the following Liabilities:
applicable Environmental Law (aA) by Seller or any of its Affiliates or (B) any and all Liabilities of and/or other Person acting on behalf of Seller for costs and expenses incurred or any of its Affiliates, in each case, in connection with this Agreement the construction, ownership, operation or maintenance of the Project or the negotiation Project Site prior to the Closing; all Liabilities relating to, resulting from or arising out of any Environmental Condition on, under, or near the Project Site to the extent existing prior to the Closing, including Liabilities related to Remediation, natural resource damages, bodily injury or property damage; all Liabilities relating to, resulting from or arising out of the off-site transportation, disposal, recycling or storage, or arrangement for same, of Hazardous Materials, from the Project or the Project Site prior to the Closing, including Liabilities related to Remediation, natural resource damages, bodily injury or property damage; all Liabilities relating to, resulting from or arising out of: (A) any employee benefit plan, employment agreement or other arrangement of Seller, any Affiliate of Seller or any of their respective ERISA Affiliates providing any type of compensation to any former or current employee of Seller, any Affiliate of Seller or any of their respective ERISA Affiliates, including any obligation or Liability for providing continuation coverage under and consummation complying with Section 4980B of the Code, Sections 601 through 608 of ERISA, and any applicable state Law of similar intent with respect to any individual who either prior to, on or after the Closing Date was covered under any group health plan contributed to or maintained by Seller, any Affiliate of Seller, or any of their respective ERISA Affiliates, or who will otherwise be an “M&A Qualified Beneficiary” (as such phrase is defined in Treasury Regulation Section 54.4980B-9, Q&A-4) in connection with the transactions contemplated by this Agreement;
; and (bB) any and current or former employee, independent contractor or consultant of Seller, any Affiliate of Seller or any of their respective ERISA Affiliates; all employee-related Liabilities of Seller accrued and any of its Affiliates relating to, resulting from or arising out of actions, omissions the Project Contracts or events occurring Project Real Property Agreements relating to the period prior to Closing and not expressly assumed by Purchaser pursuant to Section II.1.2, and all Liabilities relating to, resulting from or on arising out of Contracts relating to the Closing DateProject, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, the Project Assets or (vi) discrimination complaints;
(c) any and the Project Site which are not Project Contracts or Project Real Property Agreements; all Liabilities of Seller for and any of its Affiliates relating to, resulting from or arising out of the provision of health plan continuation coverage in accordance with Project Permits (other than Purchaser Permits) relating to the requirements of COBRA period prior to Closing and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with expressly assumed by Purchaser pursuant to Section 8.1;
(d) any II.1.2, and all Liabilities owed relating to, resulting from or claims ofarising out of Permits relating to the Project, Seller’s creditorsthe Project Assets or the Project Site which are not Project Permits; all Liabilities arising or accruing on, whether arising before prior to or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant relating to Construction Costs; all Liabilities to any applicable bulk salesPerson for personal injury, bulk transfer property damage or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loanstort relating to, accounts resulting from or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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 the siting, design, development, interconnection, construction, start-up, testing, commissioning, ownership, use, operation or resulting from maintenance of the Excluded Project or the Project Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to Closing, whether or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold not such claim was made or distributed by Seller asserted on or prior to the Closing Date Closing; all Liabilities relating to, resulting from or for a warranty claim for any product arising out of litigation and threatened litigation in connection with the Project or service sold, distributed the Project Assets (other than in connection with this Agreement) arising or performed, as the case may be, by Seller accruing on or prior to the Closing, regardless of when filed; all Pre-Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Taxes and Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Income Taxes arising from or with respect to the Purchased Assets or the operation transfer of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Project Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any ; and all Liabilities of Seller under in any Contractway relating to, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract resulting from or Permit arising out of a breach or alleged breach thereof by Seller on or prior to the Closing Date;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerAssets.
Appears in 1 contract
Sources: Build Transfer Agreement
Excluded Liabilities. Except for the Assumed Liabilities, Purchaser will does not assume, or shall not be liable forfor and under no circumstance shall Purchaser be obligated to pay or assume, and none of the Purchased Assets shall be or become liable for or subject to, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Liability of Seller Parent or Seller or their Affiliates (or any of their predecessors) (the "Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown"), absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after including the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreementaccounts payable;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsExcluded Assets;
(c) any and except to the extent specifically provided in Article VIII, all Liabilities arising out of, relating to, or with respect to (A) the employment or performance of services, or termination of employment or services by Seller for Parent, Seller or any of their Affiliates, of any Employee or any Excluded Employee on or before the provision Closing Date, (B) the employment or performance of health plan continuation coverage in accordance with services, or termination of employment or services by Seller Parent, Seller or any of their Affiliates, of any Employee that is not a Transferred Employee or any Excluded Employee after the requirements Closing Date, (C) workers' compensation claims of COBRA any Employee or any Excluded Employee that relate to the period on or before the Closing Date, (D) workers' compensation claims of any Employee that is not a Transferred Employee or any Excluded Employee that relate to the period after the Closing Date, (E) the Company Benefit Plans and Sections 601 through 608 (F) any employment, severance or change-in-control agreements (whether oral or written) or payments, including under WARN to the extent arising prior to and on the Closing Date and not the result of ERISA to employees any breach of Seller, regardless of whether this Agreement by Purchaser or not such employees accept employment with Purchaser pursuant to Section 8.1its Affiliates;
(d) except for Liabilities that constitute Assumed Liabilities, any and all Liabilities owed toLiability accruing, arising out of, or claims of, Seller’s creditors, whether arising relating to the conduct of the business and operations of Seller Parent or its Affiliates on or before or after the Closing Date, which may be asserted against Purchaser including the manufacture, sale or shipment of any of product by Seller Parent or its Affiliates on or before the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesClosing Date;
(e) any and all Liabilities for Taxes of Seller Parent or Seller other than those assumed by Purchaser under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handSection 2.3(c);
(f) any and all Liabilities relating current or long term Liability of Seller Parent, Seller or any of their Affiliates with respect to litigation indebtedness for borrowed money (i) involving the Business, excluding any capital leases included in the Purchased Assets Assets), including any guarantees by Seller Parent, Seller or Seller and existing as any of the Closing Date, or (ii) to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilitiestheir Affiliates;
(g) any and all Liabilities Liability arising under any Contract of Seller arising by reason of any violation of any Law Parent or any requirement of any Governmental BodySeller (including oral Contracts) that is not an Assigned Contract, including Real Property Lease or Personal Property Lease;
(h) all Liabilities arising fromout of, related relating to or otherwise in connection with FCC enforcement actionsrespect of the Owned Properties, in each caseReal Property Leases, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Personal Property Leases and Assigned Contracts on or prior to before the Closing Date including all Environmental Liabilities for the Owned Properties and Leased Real Properties arising on or before the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DateProduct Liabilities;
(j) any and all Taxes arising from Liability (including any accounts payable) of Seller Parent or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable Seller owed to any periodshareholders, directors or officers of Seller Parent or Seller, or any portion immediate family members or agents acting on behalf of or for the benefit of, any period, ending on or prior to the 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 Assets pursuant to this Agreement foregoing (except, in any case, as otherwise provided in this Agreement"Related Party Payables");; and
(k) any Liabilities of the Seller Liability for Indebtedness;
continuation coverage that may be required to be provided to Employees (l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, Transferred Employees) under Part 6 of Title E of ERISA and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities Section 4980B of the Code in the event Seller arising out of the injury to Parent 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the terminates its group health insurance plan after Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (International Wire Group Inc)
Excluded Liabilities. Notwithstanding the provisions of Section 2.6 or any other provisions in this Agreement to the contrary, Purchaser will shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” all of which ”), and the Seller shall retain pay and remain liable responsible for (whether all such Excluded Liabilities are known or unknownLiabilities. Without limiting the generality of this Section 2.7, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred arising from, or in connection with this Agreement with, the conduct of the Business prior to the Closing or the negotiation and consummation ownership of the transactions contemplated Purchased Assets by this AgreementSeller prior to the Closing, including, without limitation, any such Liabilities arising by reason of any violation or claimed violation by Seller, by acts or events or omissions arising or occurring prior to the Closing, of any federal, state or local Law;
(b) any and all employee-related Liabilities of Seller accrued arising from, or arising out of actionsin connection with, omissions or events occurring the Custodial Accounts prior to or on Closing, except to the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practicesextent such Liabilities arise from Buyer’s access to, or (vi) discrimination complaintsuse of, Seller’s information related to the Custodial Accounts;
(c) to the extent not covered by any and all Liabilities applicable manufacturer’s warranty, any warranty liability of Seller for or similar obligation of Seller arising from products sold or services rendered prior to the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Closing;
(d) any and all Liabilities owed to, of Seller related to or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any out of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesExcluded Assets;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between incurred by Seller not included in the Business, on the one hand, and Seller or any of its affiliates, on the other handAssumed Liabilities;
(f) any and all Liabilities relating of Seller incurred in connection with any business or activity of Seller other than the Business;
(g) any Liabilities of Seller for any Taxes required by Law to litigation be paid by Seller (i) involving relating to the Business, the Purchased Assets or Seller and existing as of the Assumed Liabilities for any taxable period ending on or before the Closing Date, or ; (ii) with respect to the extent arising any Excluded Assets; (iii) that arise out of the consummation of the transactions contemplated hereby or resulting from that are the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities responsibility of Seller arising by reason under Section 7.2; or (iv) of any violation kind or description (including any liability for Taxes of any Law Seller that becomes a liability of Purchaser under the principles of transferee or any requirement successor liability or otherwise by operation of any Governmental Body, including all Liabilities arising from, related to contract or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Datelaw);
(h) any and all Liabilities relating of Seller related to or arising out of Excluded Assets, including Excluded Contractsfees and expenses of Seller’s Accountants or legal connection in connection with this Agreement and the transactions contemplated hereby;
(i) any and all Liabilities for the return by any customer of Seller for any present or former employees, agents or independent contractors of products sold Seller, including, without limitation, any Liabilities associated with any claims for wages, bonuses, commissions, accrued vacation or distributed by Seller on other benefits, severance, termination or other payments accrued or incurred prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DateClosing;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to Liabilities under any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Benefit Plan;
(k) any Liabilities or obligation with respect to indebtedness of Seller or the Seller for Indebtedness;Business owing to any bank or other financial institution; and
(l) any trade payables and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations accounts payable of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding anything to the contrary contained herein, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Sellers of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” ”) and Sellers shall pay, perform and discharge as and when due, any and all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknownto the extent related to the Business. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of include the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement relating to or the negotiation and consummation arising out of the transactions contemplated by this AgreementExcluded Assets;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: for (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities Taxes relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Assumed Liabilities, in each case, for any taxable period (or portion thereof) ending on or prior to the day before the Closing Date; (ii) Taxes of Sellers (except Buyer’s portion of any Transfer Taxes and any Taxes that arise as a result of Buyer’s breach of covenants in Section 6.11(d)); (iii) Taxes of any Person imposed on the Business or the Purchased Assets as a transferee, successor by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing, (iv) Taxes that have been deferred from a Pre-Closing Tax Period (or the pre-Closing portion of a Straddle Period) under the CARES Act or similar state, local or Canadian Law;
(c) any Liabilities of Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others;
(d) any Liabilities of Sellers arising from or relating to the employment, engagement or termination of employment or engagement of any present or former employees, officers, directors, retirees, independent contractors or consultants of the Business, including the Liabilities expressly allocated to Sellers or their Affiliates in Section 6.3(b);
(e) any Liabilities in respect of any pending or threatened Action, whether occurring before or after the Closing, to the extent arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets prior to the Closing;
(f) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Business prior to the Closing, or by reason of any actual or alleged improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products manufactured or sold or any service performed by the Business prior to the Closing;
(iig) any recall, design defect, breach of warranty or similar claims relating to any products manufactured or sold or any service performed by Business to the extent arising out of or relating to facts, circumstances or conditions existing prior to the Closing;
(h) any Liabilities of Sellers under Environmental Laws (including any Environmental Claims relating thereto) to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) relating to any and all Liabilities of Seller arising by reason Release of any violation of Hazardous Materials at or from any Law real property owned, leased or any requirement of any Governmental Body, including all Liabilities arising from, related to or operated by Sellers in connection with FCC enforcement actionsthe Business prior to Closing, in each caseregardless of when discovered, to or the extent such Liability results from transportation or arises out disposal of events, facts or circumstances occurring or existing on or Hazardous Materials prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contractsin connection with the Business;
(i) any and all Liabilities for in respect of debt, loans or credit facilities of the return by any customer of Seller of products sold or distributed by Seller on or Business, to the extent entered into prior to the Closing Date or for a warranty claim for any product or service soldClosing, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Dateand/or Sellers;
(j) any and all Taxes Liabilities arising from out of, in respect of or in connection with respect the failure by Sellers to comply with any Law or Governmental Order or any breach or default by Sellers under any Contract, in each case to the Purchased Assets extent arising out of, relating to or otherwise in respect of the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or the Purchased Assets prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Closing;
(k) all Liabilities arising out of any Liabilities product recall occurring as a result of the Seller for Indebtednessactions or omissions prior to Closing;
(l) any and all the Liabilities set forth on Schedule 2.4(l) of Seller under any Contractthe Disclosure Letter, other than the Purchased Contracts, and 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 subject to the Closing Date;terms thereof; and
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller other Liability arising out of the injury to conduct 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 operation of the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay Business or the like with respect to any employee ownership or use of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period Purchased Assets prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Evoqua Water Technologies Corp.)
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions provision in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming assuming, and shall not be deemed to have assumed, any other Liabilities of Seller of whatever nature (whether arising prior to, at the time of, or subsequent to Closing), whether absolute, accrued, contingent or otherwise, whether due or to become due and whether or not known or unknown or currently existing or hereafter arising or matured or unmatured, direct or indirect, and Seller shall be solely and exclusively liable for any and all such Liabilities, including those Liabilities, other than the Assumed Liabilities, related to, arising out of or in connection with the operation of the Business or the Purchased Assets (including the use and ownership thereof) at any time prior to the Closing Date, and including those Liabilities set forth below (collectively, the “Excluded Liabilities”):
(a) all Liabilities arising out of, related to or otherwise in respect of the Purchased Assets or the Business arising prior to the Closing other than the Assumed Liabilities, including all Liabilities arising under the accounts payable that are owed to the parties set forth on Schedule 1.4(a);
(b) all Liabilities of Seller related to or otherwise arising, whether before, on or after the Closing, out of, or in connection with, any of the Excluded Assets;
(c) any and all Liabilities for Indebtedness with respect to borrowed money and any intercompany Indebtedness among Seller and any of its Subsidiaries;
(d) all guarantees of third party obligations, all guarantees of obligations of any Affiliates of Seller, and reimbursement obligations to guarantors of Seller’s obligations or under letters of credit;
(e) any and all Liabilities for (i) Taxes of Seller arising in or related to any taxable period, or portion thereof, ending on or before the Closing Date, (ii) any Taxes arising in connection with the consummation of the transactions contemplated by this Agreement, (iii) Taxes imposed on any Person that are the responsibility of Seller pursuant to Section 11.1(b), (iv) Taxes arising from or attributable to the Purchased Assets or the operation of the Business for any taxable period, or portion thereof, ending on or before the Closing Date, and (v) Taxes arising from or in connection with an Excluded Asset and, other than as set forth in Section 1.3, any Taxes of Seller arising on or after the Closing Date;
(f) any and all Liabilities of Seller resulting from any failure to comply with applicable “bulk sale”, “bulk transfer” or similar Law;
(g) any and all Liabilities of Seller in respect of Contracts that are not Assigned Contracts, including the Contracts set forth on Schedule 1.4(g);
(h) all Cure Costs not included in, and in excess of, the Assumed AP under Section 1.3;
(i) all Liabilities (excluding those set forth on Schedule 1.3(c)) related to (i) any current or former employees, officers, directors, independent contractors or other service providers of Seller or any of its Affiliates (except for Liabilities pertaining to Transferred Employees and incurred after the Closing with respect to Transferred Employees solely in their capacity as employees of Purchaser or an Affiliate thereof), (ii) any Action brought by any Transferred Employee in connection with any act taken by Seller or any of its Affiliates at or prior to the Closing, (iii) the employment or termination of any Transferred Employee at or prior to the Closing or as a result of the transactions contemplated by this Agreement, (iv) any change in control, retention, success bonuses or similar obligations payable by Seller and its Affiliates to any Transferred Employee as a result of the transactions contemplated by this Agreement and (v) any Seller Plan;
(j) drafts or checks outstanding at the Closing (except to the extent an Assumed Liability or related to an Assigned Contract);
(k) all Liabilities under any futures contracts, options on futures, swap agreements or forward sale agreements;
(l) all Liabilities for fees, costs and expenses that have been incurred or that are incurred or owed by Seller in connection with this Agreement or the administration of the Bankruptcy Cases (including all fees and expenses of professionals engaged by Seller) and administrative expenses and priority claims accrued through the Closing Date and post-closing administrative wind-down expenses of the bankrupt estates pursuant to the Bankruptcy Code (which such amounts shall be paid by Seller) and all costs and expenses incurred in connection with (i) the negotiation, execution and consummation of the transactions contemplated under this Agreement and each of the other documents delivered in connection herewith, (ii) the preparation and submission of any filing or notice required to be made or given in connection with any of the transactions contemplated by this Agreement, and the obtaining of any consent required to be obtained in connection with any of such transactions, (iii) the negotiation, execution and consummation of the DIP Financing Agreement and (iv) the consummation of the transactions contemplated by this Agreement, including any retention bonuses, “success” fees, change of control payments and any other payment obligations of Seller payable as a result of the consummation of the transactions contemplated by this Agreement and the documents delivered in connection herewith;
(m) any non-Ordinary Course of Business Liability of Seller arising in the Bankruptcy Cases;
(n) all Liabilities related to the WARN Act, to the extent applicable, for any action resulting from Employees’ separation of employment prior to or on the Closing Date;
(o) all Liabilities of Seller to its equity holders respecting dividends, distributions in liquidation, redemptions of interests, option payments or otherwise, and any liability of Seller pursuant to any Affiliate Agreement;
(p) all Liabilities arising out of or related to any business or property formerly owned or operated by Seller, any Affiliate or predecessor thereof, but not presently owned and operated by Seller;
(q) all Liabilities related to Claims, commercial disputes, actions, suits, arbitrations, litigation matters, proceedings or investigations (in each case whether involving private parties, authorities, or otherwise) involving, against, or affecting any Purchased Asset, the Business, Seller (other than those involving, against or affecting any Transferred Employees arising after the Closing) or assets or properties of Seller, whether commenced, filed, initiated, or threatened before or after the Closing and whether related to facts, events, or circumstances arising or occurring before or after the Closing, including the matters set forth on Schedule 1.4(q);
(r) all obligations of Seller arising and to be performed prior to the Closing Date arising from or related to the Business or the Purchased Assets;
(s) all Environmental Liabilities and Obligations;
(t) all Liabilities of Seller or its Subsidiaries (predecessors arising out of any contract, agreement, Permit, franchise or any predecessor owner of all or claim that is not transferred to Purchaser as part of the BusinessPurchased Assets or, is not transferred to Purchaser because of any failure to obtain any third-party or governmental consent required for such transfer;
(u) all Liabilities of whatever nature. All such Seller related to or arising under any corporate restructuring process, including (i) any advisor fees, including financial advisor fees, consultant fees, legal fees and accounting fees and (ii) any other Liabilities shall be retained by and remain commitment that is not directly related to servicing or supporting customer accounts;
(v) all Liabilities and payment obligations related to or arising under any information technology assets owned or licensed to Seller, except to the extent assumed by Purchaser as Purchased Assets or Assumed Liabilities; and
(w) any Liabilities of SellerSeller related to the operations of or otherwise related to the business of Ciber-CMC Joint Venture Corporation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ciber Inc)
Excluded Liabilities. Purchaser will not assumeNotwithstanding anything to the contrary set forth herein, under no circumstance shall Buyer assume or be obligated to pay, and none of the Assets shall be or become liable forfor or subject to, any liabilities of the Excluded Liabilities, including the following, which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each liabilities of the following LiabilitiesSeller:
(a) any and all Liabilities of and/or on behalf liabilities or obligations of Seller for costs and expenses incurred Taxes in connection with this Agreement respect of periods ending prior to the Effective Time or resulting from the negotiation and consummation of the transactions contemplated by this Agreementherein;
(b) liabilities or obligations associated with any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on properties other than the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsAssets;
(c) liabilities or obligations under any Assumed Contract that were due and all Liabilities of Seller for payable prior to the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Effective Time;
(d) liabilities or obligations under any and all Liabilities owed to, Assumed Contract arising from any breach or claims of, Seller’s creditors, whether arising before or after default prior to the Closing DateDate of any Assumed Contracts or other Assumed Liabilities, which may be asserted against Purchaser or any liabilities arising out of the Purchased Assets pursuant assignment to Buyer at Closing of any applicable bulk salesAssumed Contract, bulk transfer or similar laws and which do liabilities arising under any Contracts not otherwise constitute Assumed Liabilitiesassumed by Buyer;
(e) any and all Liabilities under any intercompany loans, accounts liabilities or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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 obligations arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actionsclaims, litigation or proceedings described in each caseSchedule 3.13, and claims, litigation and proceedings (whether instituted prior to the extent such Liability results from or arises out after Closing) for acts or omissions of eventsSeller, facts MI or circumstances occurring or existing on or PG which allegedly occurred prior to the Closing Date;
(hf) liabilities or obligations to any and all Liabilities Governmental Authority arising from or relating to periods prior to the Effective Time and pertaining to the Assets in any manner whatsoever (whether or not triggered by the transactions contemplated by this Agreement and whether or not imposed by Legal Requirements directly on Buyer as the transferee of the Assets); and
(g) penalties, fines, settlements, interest, costs and expenses arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) any and all Liabilities of Seller arising by reason of any violation actual or alleged violation by Seller of any Law or any requirement of any Governmental Body on or prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerLegal Requirement.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assumeFrom and after the Closing, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller and its Affiliates shall retain and remain liable responsible for (whether such Excluded Liabilities are known or unknownand satisfy, absolute, contingent, liquidated or unliquidated, due or to become discharge and perform when due, and whether claims Purchaser shall have no obligation with respect thereto are asserted before or after to, any liabilities of Seller and its Affiliates other than the ClosingAssumed Liabilities (collectively, the “Excluded Liabilities”). Excluded Liabilities shall include, but not be limited to, each Without limiting the generality of the foregoing, Seller and its Affiliates shall retain all liability for the following Excluded Liabilities:
(a) all liabilities arising out of or relating to any and Excluded Asset or any business of Seller or its Affiliates other than the Business;
(b) except as provided in Section 7.1, (i) all Liabilities of and/or on behalf for any Taxes of Seller for costs and expenses incurred in connection with this Agreement or any of its Affiliates, including Taxes that arise out of the negotiation and consummation of the transactions contemplated by this Agreement;
the Transaction Documents (bincluding Transfer Taxes), and (ii) any and all employee-related Liabilities of Seller accrued for Taxes to the extent relating to or arising out of actionsthe Business, omissions the Transferred Assets or events occurring prior the Assumed Liabilities for any Pre-Closing Tax Period (including any such Taxes that are deferred under the CARES Act or the CCA to a taxable period or on portion thereof beginning after the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints);
(c) all liabilities to the extent relating to or arising out of the Indebtedness of, or any and all Liabilities pending or threatened Action against, Seller or any of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1its Affiliates;
(d) all liabilities assumed by, retained by or agreed to be performed by Seller or any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after of its Affiliates pursuant to the Closing Date, which may be asserted against Purchaser terms of this Agreement or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesAncillary Agreements;
(e) except for the Assumed PTO, all liabilities relating to or arising out of any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handBenefit Plan;
(f) any and all Liabilities liability for warranty claims, recalls or products liability relating to litigation (i) involving the Business, the Purchased Assets products sold or services provided by Seller and existing as of the Closing Date, or (ii) prior to the extent arising out of or resulting from the Excluded Assets or Excluded LiabilitiesClosing;
(g) any and all Liabilities liability of Seller arising by reason of to indemnify any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or Person in connection with FCC enforcement actions, in each caseproducts sold or services provided by Seller prior to the Closing;
(h) all liabilities arising under Healthcare Laws, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing arising on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out Closing, regardless of Excluded Assets, including Excluded Contractswhen discovered;
(i) any and all Liabilities except for the return by Assumed PTO, any customer of Seller of products sold accrued payroll, payroll Taxes, bonuses, commissions or distributed by Seller on profit sharing or prior to other incentive payments and related expenses existing at the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;Closing; and
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending liabilities listed on or prior to the 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 Assets pursuant Schedule 2.4(j) to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser Notwithstanding anything to the contrary set forth in this agreement, under no circumstance will not assume, Buyer assume or be obligated to pay, and from and after the Closing, none of the Assets will be or become liable for, for or subject to any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “of the Excluded Liabilities,” all of , including the following, which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each will remain liabilities of the following LiabilitiesSeller:
(a) any all liabilities accrued on the Closing Balance Sheets, other than those included in Net Working Capital or VBIC’s Net Worth, and all Liabilities other than capitalized lease obligations constituting Assumed Contracts;
(b) liabilities or obligations for Taxes of and/or the Hospital Businesses in respect of periods ending on behalf of Seller for costs and expenses incurred in connection with this Agreement or before the negotiation and Closing Date or resulting from the consummation of the transactions contemplated by this Agreement;
agreement (b) any other than real estate transfer Taxes and all employee-related Liabilities of Seller accrued or sales and use Taxes arising out of actionsthe transfer of the Assets, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintswhich shall be paid by Buyer as a Credited Expense);
(c) any and all Liabilities liabilities or obligations for federal or state income Taxes of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees or any Subsidiary or Affiliate of Seller, regardless including amounts for which any Transferring Subsidiary, including VBIC, may be liable as a result of whether being a member of a consolidated, affiliated, combined, unitary or not similar group that includes such employees accept employment with Purchaser pursuant to Section 8.1other Persons;
(d) any and all Liabilities owed to, liabilities or claims of, Seller’s creditors, whether arising before or after obligations relating to the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesExcluded Assets;
(e) any and all Liabilities liabilities or obligations associated with indebtedness for borrowed money (other than capital lease obligations under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handAssumed Contract);
(f) any and all Liabilities relating to litigation (i) involving obligations required to be performed by Seller on or before the BusinessClosing Date under the Assumed Contracts, (ii) liabilities or obligations resulting from a breach or default on or before the Closing Date of any Assumed Contracts and (iii) liabilities arising under any Contracts that are not Assumed Contracts;
(g) liabilities or obligations arising out of or in connection with the Proceedings described on Schedule 3.23, and Proceedings and claims (whether instituted before or after Closing) relating to acts or omissions that allegedly occurred on or before the Closing Date, including those relating to peer review activities;
(h) liabilities or obligations under the ▇▇▇▇-▇▇▇▇▇▇ Act or other restricted grant or loan programs;
(i) except for paid time off accruals of the Hired Employees and Extended Illness Bank Obligations, and obligations under Assumed Contracts, liabilities and obligations to Seller’s employees, Employee Benefit Plans, the Purchased Internal Revenue Service, PBGC or any other Governmental Authority arising from or relating to periods before Closing (whether or not triggered by the transactions contemplated by this agreement and whether or not imposed by Legal Requirements directly on Buyer as the transferee of the Assets or successor to the Hospital Businesses), including liabilities or obligations arising under any Employee Benefit Plan, severance pay program or arrangement, EEOC claim, unfair labor practice, and wage and hour practice, and liabilities or obligations arising under the WARN Act, as a result of acts of Seller and existing as before Closing;
(j) Cost Report settlement payables relating to all Cost Report periods ending on or before the Closing Date;
(k) liabilities or obligations of Seller in respect of periods ending on or before the Closing Date, or (ii) to the extent arising out of or resulting from the Excluded Assets consummation of the transactions contemplated by this agreement, under third-party payor programs and Government Payment Programs, including recoupment rights of the Centers for Medicare & Medicaid Services or Excluded Liabilitiesthe Texas Department of State Health Services and recapture of previously reimbursed charges or expenses;
(gl) any and all Liabilities of Seller arising by reason of any violation of any Law liabilities or obligations owed to Cardinal Health, Inc. or any requirement of any Governmental Body, including all Liabilities its Affiliates under terminated Contracts with such Persons;
(m) liabilities or obligations arising from, related under the Accretive Contract and relating to events or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing periods on or prior to the Closing Date;; and
(hn) any penalties, fines, settlements, interest, costs and all Liabilities relating to or expenses arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) any and all Liabilities of Seller arising by reason of any violation actual or alleged violation by Seller of any Law or any requirement of any Governmental Body on or prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerLegal Requirement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vanguard Health Systems Inc)
Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, the Purchaser will shall not assume, assume or in any way be liable responsible for, any liabilities which are not and the Seller shall remain obligated to pay, honor, perform and discharge, all of the Liabilities of the Seller (other than the Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as ) (collectively, the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown”), absoluteincluding, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitieswithout limitation:
(a) any and all Liabilities arising out of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or relating to the negotiation and consummation Seller’s ownership, use or operation of the transactions contemplated Business and the Purchased Assets, in each case prior to the Closing arising by this Agreementoperation of law under any common law or statutory doctrine (other than the Assumed Liabilities);
(b) any and all employee-related Liabilities based upon, relating to, arising under or with respect to the Excluded Assets or the ownership, operation or use of any businesses of the Seller accrued or arising out any of actionsits Affiliates, omissions other than the Business, whether before, at or events occurring prior to or on after the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsClosing;
(c) any and all Liabilities relating to indebtedness of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, directly or claims of, Seller’s creditors, whether indirectly arising before out of or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant related to any applicable bulk sales, bulk transfer breach of Contract occurring or similar laws and which do not otherwise constitute Assumed Liabilitiesexisting prior to the Closing;
(e) any and all Liabilities under any intercompany loans, accounts liabilities or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation obligations for (i) involving Taxes relating to the Business, the Purchased Assets or Seller and existing as of the Assumed Liabilities for the Pre-Closing DateTax Period, or (ii) Taxes relating to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of its equity holders or Affiliates, including, but not limited to, any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing Date, and income and similar Taxes, of a type not described in Section 7.11, that are imposed will arise as a result of the sale of the Purchased Assets and the Assumed Liabilities pursuant to this Agreement Agreement, and (except, in iii) any case, as otherwise provided in this Agreement)deferred Tax liabilities;
(kf) any Liabilities of the Seller for Indebtedness;
based upon, relating to, or arising under or with respect to (li) any and all Liabilities Seller Benefit Plan, (ii) the employment or termination of employment of (x) any employee of the Seller under any Contract, other than employed by the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller Purchaser following the Closing with respect to periods on or prior to the Closing Date;
and (my) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing at any time, and all Liabilities of Seller arising by reason of any violation or alleged violation of any Law (iii) workers’ compensation claims, unemployment insurance premiums or any requirement claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws of (x) any Governmental Body employee employed by the Purchaser following the Closing which relate to events occurring on or prior to the Closing Dateand (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing which relate to events occurring at any time;
(ng) any and any Liabilities for the return by any customer of Seller of products sold Liability based upon, arising under or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee Environmental Law, including any Liability of the Seller that does not accept employment in any way pertaining to or arising from the acts, omissions or strict liability of any predecessor of the Seller;
(h) any Liability based upon, arising under or with respect to any matter disclosed or required to be disclosed in Schedule 5.16;
(i) any Liability based upon any fee or commission or like payment payable to Generational Equity as a result of the transactions contemplated by this Agreement and any other fee or expense arising or incurred by Seller in connection with the Purchaser upon completion of the transaction transactions contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(rj) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement Liability based upon, arising under or with respect to any warranty given or sold by the contrarySeller, Purchaser is assuming only the Assumed Liabilities and is not assuming regardless of whether any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerwarranty claim has been made to date.
Appears in 1 contract
Excluded Liabilities. Purchaser Notwithstanding anything to the contrary in this Agreement, Buyer will not assume, assume or be liable for, for any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following obligations or liabilities of Seller (collectively, the "Excluded Liabilities"), and Seller shall retain, and shall continue to be responsible after the Closing Date for, and shall indemnify and hold Buyer and the Buyer Group harmless from and against, all of the Excluded Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities of Seller liabilities for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) Taxes to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities operations of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Business on or prior to the Closing Date; provided that where it is necessary to apportion the liability for a Tax arising with respect to a taxable period beginning before the Closing and ending after the Closing, such liability shall be apportioned on the basis of an interim closing of the books, except that real property Taxes, personal property Taxes and similar Taxes shall be apportioned on a daily basis;
(hii) all inter- and intra-company payables;
(iii) all liabilities to the extent relating to any Excluded Asset;
(iv) all liabilities arising out of or resulting from any product manufactured or assembled by Seller with respect to the Business prior to the Closing Date (including all defects in products manufactured or assembled by Seller prior to the Closing Date);
(v) to the extent incurred prior to the Closing Date, any and all Liabilities liabilities and obligations to or with respect to employees of Seller or the Business arising out of or relating to their employment, all liabilities and obligations to or with respect to employees of Seller or the Business who are not hired by Buyer, all liabilities and obligations with respect to any severance, separation or similar pay or benefits arising out of the actual, alleged or constructive termination of employment with Seller or the Business arising as a result of the transactions contemplated hereby, and all liabilities and obligations under, relating to or arising out of Excluded Assetsany Employee Benefit Plans, including Excluded Contractsother than those liabilities specifically identified as an Assumed Liability pursuant to Section 1(b)(ii) above;
(ivi) any and all Liabilities for the return by any customer liabilities of Seller of products sold arising under any Environmental, Health and Safety Laws from any offsite storage, disposal or distributed by Seller on or transport prior to the Closing Date of any substances or for a warranty claim for any product materials generated or service sold, distributed or performed, as the case may be, used by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;; and
(jvii) any and all Taxes arising from obligations and liabilities in respect of (A) indebtedness for borrowed money, (B) obligations evidenced by bonds, notes, debentures or with respect other similar instruments or by letters of credit, including purchase money obligations or other obligations relating to the Purchased Assets deferred purchase price of property (other than trade payables incurred in the ordinary course of business consistent with past practice) and (C) obligations as lessee under leases which have been or the operation should have been, in accordance with GAAP, recorded as capital leases (but without derogation of the Business Parties' agreement that are incurred the assets leased pursuant to such leases shall be Acquired Assets, free and clear of the obligations under such leases); (D) obligations under direct or indirect guaranties in respect of indebtedness or attributable obligations of others of the kind referred to any period, or any portion of any period, ending on or prior to the Closing Datein clauses (A) through (C) above, and income and similar Taxes(E) accrued interest, of a type not described in Section 7.11if any, that are imposed as a result on any of the sale of the Purchased Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerforegoing.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assumeBuyer has no responsibility for, or be liable forand the Company, Lucas and the Principals, jointly and severally, shall indemnify and h▇▇▇ ▇uyer harmless from, any liabilities or obligations of the Company and Lucas of any nature whatsoever which are not specifically included in ▇▇▇ ▇ssumed Liabilities identified in Section 1.03, whether similar or dissimilar to the Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (, whether such Excluded Liabilities are known now existing or unknown, absolute, contingent, liquidated or unliquidated, due or to become duehereafter arising, and whether claims with respect thereto are asserted before known or after unknown to Buyer, the ClosingCompany, Lucas or the Principals (the "Excluded Liabilities"). Excluded Liabilities shall include, but not be limited toincluding, each witho▇▇ ▇▇mitation, all of the following Liabilitiesfollowing:
(a) any and all Liabilities or obligations arising out of and/or on behalf an event that occurred, products sold or services performed by the Company or Lucas, or their ownership of Seller for costs and expenses incurred in connection with this Agreement the Acquired Assets or the negotiation and consummation of operation ▇▇ ▇he Business, on or prior to the transactions contemplated by this AgreementClosing Date;
(b) any Liabilities or obligations for foreign, federal, state, county, local or other governmental taxes of the Company and all employee-related Liabilities Lucas relating to the operation of Seller accrued the Business or arising out of actions, omissions the ownership ▇▇ ▇▇e Acquired Assets on or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) Liabilities or obligations related to or arising out of 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 Employee Plans or any other liabilities to employees or former employees of Sellerthe Company or Lucas, regardless except for payroll taxes incurred in the normal course of whether ▇▇▇▇▇ess and payable after the Closing Date and those liabilities or not such employees accept employment obligations accruing after the Closing Date with Purchaser pursuant respect to the Employee Plans identified in Section 8.12.16(a) of the Disclosure Schedule as being assumed by Buyer;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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 obligations arising out of any litigation or resulting from administrative or arbitration proceeding to which the Excluded Assets Company, Lucas or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law either Principal is a party or any requirement claims by or against ▇▇▇ ▇ne of any Governmental Body, including all Liabilities them arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(he) Liabilities or obligations resulting from any and all Liabilities relating to breach by the Company or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller Lucas on or prior to the Closing Date of any contract or for agreemen▇ ▇▇ which the Company, Lucas or either Principal is a warranty claim for party or by which any product one of them ▇▇ ▇▇und, including, without limitation, any Assumed Contract or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DatePurchase Order;
(jf) Liabilities or obligations resulting from any and all Taxes arising from or with respect to violation by the Purchased Assets or the operation of the Business that are incurred in or attributable to any periodCompany, Lucas, either Principal, or any portion employee, director or agent of the ▇▇▇pany or Lucas, or any predecessor for which the Company or Lucas may be l▇▇▇▇▇, of any periodapplicable foreign, ending federal, state, c▇▇▇▇▇, ▇▇cal or other governmental laws, decrees, ordinances or regulations, or any permit, license, consent, certificate, approval or authorization issued pursuant to such laws, decrees, ordinances or regulations, including, without limitation, those applicable to discrimination in employment, employment practices, wage and hour, retirement, labor relations, occupational safety, health, trade practices, environmental matters, competition, pricing, product warranties, product liability and product advertising;
(g) Liabilities or obligations resulting from workers' compensation claims or audits arising out of events occurring on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(rh) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in The Company's and Lucas' obligations under this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerAgreement.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of any Seller Party or any of their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” ”). Seller Parties shall, and shall cause each of their Affiliates to, pay and satisfy in due course all of which Seller shall retain and remain liable for (whether such Excluded Liabilities which they are known or unknownobligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of a Seller for costs and expenses Party arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement or Agreement, the negotiation Ancillary Documents and consummation of the transactions contemplated by this Agreementhereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, brokers, advisers and others (“Closing Costs”);
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: Liability for (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities Taxes of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees (or any Member or Affiliate of Seller, regardless of whether ) or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Assumed Liabilities for any Pre-Closing Date, or Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Seller pursuant to the extent Section 6.07; or (iii) other Taxes of Seller (or any member or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any member or Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of or resulting from the Excluded Assets or Excluded LiabilitiesAssets;
(gd) any and all Liabilities of Seller arising by reason in respect of any violation of any Law pending or any requirement of any Governmental Bodythreatened Action arising out of, including all Liabilities arising from, related relating to or otherwise in connection with FCC enforcement actions, in each case, respect of the operation of the Business or the Purchased Assets to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(e) any Liabilities of Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(f) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(g) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller;
(h) any and all Liabilities relating trade accounts payable of Seller (i) to the extent not accounted for on the Balance Sheet; (ii) which constitute intercompany payables owing to Affiliates of Seller or arising out any Member; (iii) which constitute debt, loans or credit facilities owing to financial institutions are incurred in connection with capital leases; or (iv) which did not arise in the ordinary course of Excluded Assets, including Excluded Contractsbusiness;
(i) any and all Liabilities for of the return Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by any customer of Seller of products sold or distributed by the Business’ customers to Seller on or prior before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior Buyer pursuant to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Datethis Agreement;
(j) any and all Taxes arising from Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to the Purchased Assets or the operation any breach of the Business that are incurred in or attributable to any periodfiduciary obligations by same), or any portion except for indemnification of any period, ending on or prior to the 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 Assets same pursuant to this Agreement (except, in any case, Section 7.03 as otherwise provided in this Agreement)Seller Indemnitees;
(k) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of the or relate to a breach by Seller for Indebtednessof such Contracts prior to Closing;
(l) any and all Liabilities associated with the Indebtedness of the Seller under and/or the Business, including but not limited to any Contractdebt, other than the Purchased Contracts, loans or credit facilities owing to financial institutions and 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;capital leases; and
(m) any and all Liabilities arising out of, in respect of or in connection with the failure by Seller arising by reason or any of any violation or alleged violation of its Affiliates to comply with any Law or any requirement of any Governmental Body on or prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerOrder.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assume, Under no circumstance shall Buyer assume or be obligated to pay, and none of the Assets shall be or become liable forfor or subject to, any liabilities of the Excluded Liabilities, including the following liabilities, which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each liabilities of the following LiabilitiesSellers:
(a) any and all Liabilities of and/or liabilities accrued on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of Closing Balance Sheet other than the transactions contemplated by this AgreementAssumed Liabilities;
(b) any and all employee-related Liabilities of Seller accrued liabilities or arising out of actions, omissions or events occurring prior to or obligations for items characterized as deferred income taxes on the March 31 Balance Sheet and the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges Balance Sheet or Taxes resulting from the consummation of unfair labor practices, or (vi) discrimination complaintsthe Transaction;
(c) liabilities or obligations associated with 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Excluded Assets;
(d) liabilities or obligations associated with any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after indebtedness of Seller for borrowed money not included in the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any liabilities or obligations under the Assumed Contracts that are not Assumed Liabilities and all Liabilities liabilities or obligations arising under any intercompany loans, accounts the Rejected Contracts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handCompleted Contracts;
(f) any liabilities or obligations arising out of or in connection with claims, litigation and all Liabilities relating proceedings (whether instituted prior to litigation (ior after Closing) involving the Businessfor acts or omissions which occurred, the Purchased Assets or Seller and existing as of arise from events that occurred, prior to the Closing Date, including such liabilities or obligations as are reflected on the March 31 Balance Sheet and will be reflected on the Closing Balance Sheet;
(g) liabilities or obligations (i) to Sellers' employees (other than under the Employee Agreements), (ii) with respect to the Employee Benefit Plans and Other Plans, (iii) of Sellers to the Internal Revenue Service, PBGC or any other Governmental Authority relating to Sellers' employees, in each case arising from or relating to periods prior to Closing (whether or not triggered by the Transaction or the announcement thereof) except to the extent reflected on the Closing Balance Sheet;
(h) liabilities or obligations related to the ESOP, including, without limitation, those liabilities and obligations reflected on the Closing Balance Sheet;
(i) penalties, fines, settlements, interest, costs and expenses arising out of or incurred as a result of any actual or alleged violation by any of Sellers of any Legal Requirement;
(j) liabilities or obligations under the WARN Act, if any, arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities layoffs of Seller arising employees by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or Sellers prior to Closing and/or the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation consummation of the Business Transaction sufficient in the aggregate to require notice under the WARN Act, but not those that are incurred in or attributable to may arise from any period, or any portion layoffs of any period, ending on or prior to Hired Employees by Buyer after the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Closing;
(k) liabilities related to any Liabilities debtor in possession financing under Section 364(b), (c) or (d) of the Seller for IndebtednessBankruptcy Code;
(l) any all liabilities of Sellers for expenses (i) of the negotiation and all Liabilities preparation of Seller under any Contractthis Agreement, other than the Purchased Contracts, and 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 (ii) relating to the Closing Date;Transaction, (iii) of the filing and administration of the Bankruptcy Cases, in each case to the extent incurred by Sellers or any of them and including those related to legal counsel, accounting, brokerage and investment advisors fees and disbursements and (iv) any pending shareholder claim, litigation or proceeding; and
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 amounts paid by or on behalf of the SellerSellers to Jacobs, in each caseincluding, without limitation, any amounts paid by or on or prior behalf of Sellers pursuant to the Closing Date;
Jacobs Asset Purchase Agreement (pincluding the Break-Up Fee (as defined therein) any and all Liabilities of Seller for severance pay the Expense Reimbursement (as defined therein)), the Jacobs Credit Agreement or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Jacobs DIP Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer shall not assumeassume and shall not be responsible to pay, perform or discharge, nor shall the Purchased Assets or Buyer be liable forsubject to, any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities or obligations of Sellers other than the Assumed Liabilities shall be referred to as (collectively, the “Excluded Liabilities,” all of ”), which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each remain the responsibility and obligation of the following LiabilitiesSellers or one or more of their Affiliates (other than the Acquired Subsidiaries) to pay, perform and discharge when due after Closing. For the avoidance of doubt, Excluded Liabilities include:
(a) any and all Liabilities or obligations arising out of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or relating to the negotiation and consummation ownership or operation of the transactions contemplated Business, the Acquired Subsidiaries and the Purchased Assets by this Agreementthe Lawn and Garden Parties prior to the Closing Date except to the extent such Liabilities are Assumed Liabilities pursuant to Section 2.03;
(b) any and all employee-related Liabilities of Seller accrued or obligations relating to or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsExcluded Assets;
(c) any and all Liabilities of Seller or obligations for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA Taxes Related to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing the Assumed Liabilities, in each case for any Pre-Closing Tax Period (including, for the avoidance of doubt, any such sales or use Tax) (other than Taxes allocated to Buyer under Section 6.11);
(d) except as specifically provided in Section 6.04, any Liabilities or obligations of Sellers relating to or arising out of (i) the employment, or termination of employment, of any current or former employee prior to the Closing Date(including, for the avoidance of doubt, any such severance obligations), (ii) any Benefit Plan, (iii) any Transaction Expense, or (iiiv) to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason workers’ compensation claims of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related Employee which relate to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances events occurring or existing on or prior to the Closing Date;
(he) any Liabilities or obligations of Sellers arising or incurred in connection with the negotiation, preparation, investigation and all Liabilities relating to or arising out performance of Excluded Assetsthis Agreement, including Excluded Contractsthe other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(kf) any Liabilities and obligations of Sellers set forth on Section 2.04(f) of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinDisclosure Schedules; and
(rg) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement Liability, Loss or other cost or expense necessary to repair, restore or modify each item set forth on Exhibit K to permit the vacation or surrender of the applicable Leased Real Property to the contraryapplicable landlord in the state or condition required by the Lease with respect to those items (it being acknowledged by Sellers that the applicable Lease requires the repair, Purchaser is assuming only restoration or modification of each item set forth on Exhibit K) as in effect on the Assumed Liabilities date hereof, as supplemented or modified by any Assignment and is not assuming any other Liability Assumption of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All Lease related to such other Liabilities shall be retained by and remain Liabilities and obligations of SellerLeased Real Property.
Appears in 1 contract
Excluded Liabilities. (a) The Purchaser will shall not assume, or be liable and shall have no liability for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all debts, liabilities, obligations, expenses, taxes, contracts or commitments of which the Seller shall retain and remain liable for (or the Business of any kind, character or description, whether such Excluded Liabilities are known or unknownaccrued, absolute, contingentcontingent or otherwise, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions any act or events omission occurring or state of facts existing (except as expressly provided below) prior to or on the Closing DateDate (the "Excluded Liabilities"), including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;following:
(i) any liability of the Seller under any noncompetition, consulting or employment agreement, or similar agreement, commitment or arrangement, whether written or oral;
(ii) any liability of the Seller or the Business for any federal, state, local or foreign taxes (other than sales, withholding, payroll taxes and all Liabilities for the return by real or personal property taxes), including, without limitation, any customer of Seller of products sold income, capital gains or distributed by Seller franchise taxes or any taxes on or prior capital (including, without limitation, any deferred income tax liability and any penalties and interest thereon) attributable to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller period ending on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to and including the Closing Date;; other than those listed on the September 30, 2000 balance sheet.
(jiii) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim liability for any product federal, state, local or service soldforeign sales, distributed withholding, payroll or performed, as the case may be, real or personal property taxes incurred by the Seller on or prior to the Closing based Date other than those listed on the September 30, 2000 balance sheet;
(iv) any express warrantyliability for expenses incurred by, oral or writtenfor claims made against, the Seller in connection with or resulting from or attributable to this Agreement or the transactions contemplated hereby;
(v) any liability for any investment banking, brokerage or similar charge or commission, or any implied warranty arising due to attorneys' or accountants' fees and expenses, payable and incurred by the statements Seller in connection with the preparation, negotiation, execution or conduct delivery of Seller this Agreement or Seller’s employees or agentsthe transactions contemplated hereby;
(ovi) any and all Liabilities liability arising out of any misrepresentation or breach of any warranty of the Seller contained in this Agreement or any of the Schedules or Exhibits hereto or in any certificate, agreement, instrument or other document delivered pursuant hereto or out of the failure of the Seller to perform any of its agreements or covenants contained herein or therein;
(vii) any liability arising out of activities undertaken by the injury Seller after the Closing Date, including, but not limited to, any liability or obligation in connection with employment practices, terms and conditions of employment and wages and hours, to employees or death former employees of the Seller;
(viii) any person liability for any personal injury, property damage, product liability or animal or damage to or destruction of any tangible property, whether based on negligence, breach of warranty, strict liability, enterprise liability warranty claim caused by or any other legal allegedly caused by or equitable theory arising from or related to allegedly arising from any goods, products (or parts or components thereof) sold, distributed or otherwise disposed of or services performed supplied by or on behalf of the Seller, in each case, on or Seller prior to the Closing Date;
(pix) any liability arising out of or allegedly arising out of any tortious, unlawful or unethical conduct of the Seller;
(x) any liability for any group life or health insurance, property damage or personal injury claim for employees of the Seller and their eligible dependents in connection with any accident or event occurring prior to the Closing Date;
(xi) any liability arising under all Liabilities applicable laws respecting employment, employment practices, terms and conditions of employment, and wages and hours, workers' compensation claims or proceedings, discrimination claims or proceedings, benefits or severance or other liabilities or obligations in connection with any accident or incident occurring prior to the Closing Date to employees or former employees of the Seller;
(xii) any liability or obligation under any pension, retirement, severance, welfare, vacation, deferred compensation bonus or other incentive plan, or other employee benefit program, arrangement, agreement or understanding, or medical, vision, dental or health plan, or life insurance or disability plan, retiree medical plan or any other employee benefit plans, including, without limitation, any "employee benefit plan" (as defined in Section 3(3) of ERISA) or any "multi-employer plans" (as defined in Section 3(37) of ERISA), or any "employee welfare plan" (as defined in Section 3(i) of ERISA) or any other plans, programs or arrangements of any kind to which the Seller contributes or is a party or by which it is bound or under which it may have liability and under which employees or former employees of the Seller (or their beneficiaries) are eligible to participate or derive a benefit, whether claims for severance pay the same are asserted by such employees before or after the like Closing Date;
(xiii) any liability or obligation of the Business owing to the Seller or any Affiliate (as defined in Section 3.23 below) of the Seller; other than those listed on the September 30, 2000 balance sheet.
(b) The Seller shall remain fully liable for the Excluded Liabilities.
(c) The Purchaser shall be free to hire such persons, whether or not employees of the Seller or engaged in activities with respect to the Business, on such terms and conditions of employment as the Purchaser shall determine in the exercise of its sole discretion, and nothing in this Agreement shall establish any enforceable rights, legal or equitable, in any person other than the parties hereto, including, without limitation, any employee of the Seller that does not accept or any beneficiary of such employee, beyond those which constitute Assumed Liabilities pursuant to Section 1.3. Any claim, including any claim for benefits, asserted, by or on behalf of any person with respect to such person's employment with by the Purchaser, shall be governed solely by applicable employment policies and employee benefit plans, if any, which the Purchaser upon completion of shall adopt after the transaction contemplated by this Agreement;
(q) any Closing Date, as construed in accordance with applicable federal and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilitiesstate law. Notwithstanding any provisions in this Agreement anything contained herein to the contrary, the Purchaser is assuming only shall not be obligated to establish or maintain for the Assumed Liabilities and is not assuming any other Liability benefit of Seller or its Subsidiaries (or any predecessor owner of all or part employees of the Business) Business any employee benefit plan or fringe benefit arrangement of whatever natureany kind, including, but not limited to, ERISA plans. All The Seller will retain sole and complete responsibility for the administration of, and benefits payable under, all employee benefit plans maintained by Seller for the benefit of the employees of the Business on or prior to the Closing Date subject to the terms of such other Liabilities shall be retained plans. Notwithstanding anything to the contrary herein, the Purchaser may, in its sole and absolute discretion, terminate, with or without cause, any employee hired by and remain Liabilities and obligations of Sellerthe Purchaser in connection with the transactions contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (California Software Corp)
Excluded Liabilities. Purchaser Berry and/or its subsidiaries designated by Berry (other than any member of the Spinco Group) will not assume, generally retain or be liable for, assume any liabilities which that are not Spinco Assumed Liabilities. All such , which liabilities, including, among other things and subject to certain exceptions, those liabilities which described below, are not Assumed Liabilities shall be referred to herein as the “Excluded Liabilities,” ”: • all liabilities set forth on Schedule III to the Separation Agreement; • all liabilities of which Seller shall retain Berry or its subsidiaries to the extent (i) such liabilities are not Spinco Assumed Liabilities or (ii) relate to, arise out of or result from any disposed or discontinued business or operations of Berry and remain liable for (its subsidiaries as of the Spinco Distribution; • all liabilities, whether such Excluded Liabilities are known presently in existence or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or arising after the Closing). Excluded Liabilities shall include, but not be limited to, each date of the following Liabilities:
(a) Separation Agreement, relating to fees, commissions or expenses owed to any and all Liabilities broker, finder, investment banker, accountant, attorney or other intermediary or advisor engaged by any member of and/or on behalf the Berry Group or, to the extent the relevant engagement was entered into before the Spinco Distribution, any member of Seller for costs and expenses incurred the Spinco Group, in each case in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
the Separation Agreement or the Ancillary Agreements (b) any and all employee-related Liabilities of Seller accrued or arising out of actionsother than, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities of Seller for the provision avoidance of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Sellerdoubt, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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 otherwise provided in the RMT Transaction Agreement or any Ancillary Agreement); • all liabilities to the extent relating to, arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason indemnification of any violation director, officer, manager, agent or employee of any Law Berry or any requirement of its affiliates who was a director, officer, manager, agent or employee of Berry or any Governmental Body, of its affiliates (including all Liabilities arising from, related to the Spinco Group) on or in connection with FCC enforcement actions, in each case, TABLE OF CONTENTS before the Spinco Distribution to the extent such Liability results director, officer, manager, agent or employee is or becomes a named defendant in any shareholder derivative suit brought by stockholders of Berry against Berry arising from the transactions contemplated by this Agreement or arises out of events, facts or circumstances occurring or existing on or prior the RMT Transaction Agreement; • all liabilities to the Closing Date;
(h) extent relating to, arising out or resulting from any and all Liabilities relating matter subject to or regulated by environmental law, in each case whether before, at or after the Spinco Distribution, and in each case to the extent relating to, arising out of Excluded Assets, including Excluded Contracts;
or resulting from: (i) the ownership, occupancy or use of any property of the Berry Group; or (ii) the use, treatment, release, handling, transportation or disposal of hazardous substances on or from any property of the Berry Group; and • all other liabilities of Berry and its subsidiaries that are expressly contemplated by the Separation Agreement or any other Ancillary Agreement as liabilities to be retained or assumed by Berry or any other member of the Berry Group, and all agreements, obligations and other liabilities of Berry or any member of the Berry Group under the Separation Agreement or any of the other Ancillary Agreements. The Excluded Liabilities for will include the return by above liabilities regardless of when or where such Excluded Liabilities arose or arise, or the legal entity that incurred or holds the Excluded Liability (provided, however, that nothing contained in the Separation Agreement will preclude or inhibit Berry from asserting against third parties any customer of Seller of products sold or distributed by Seller on or prior defense available to the Closing Date person that incurred or for a warranty claim for any product holds such Excluded Liability), or service soldwhether the facts on which they are based occurred before, distributed at or performed, as the case may be, by Seller on or prior subsequent to the Closing Date based on any express warranty Spinco Distribution, regardless of where or implied warranty arising due to against whom such Excluded Liabilities are asserted or determined or whether asserted or determined before the statements or conduct date of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or Separation Agreement. Information contained herein with respect to the Purchased Assets assets and liabilities of the parties following the Spinco Distribution is presented based on the allocation of such assets and liabilities pursuant to the Separation Agreement unless the context otherwise requires. Certain of the liabilities and obligations assumed by one party or for which one party will have an indemnification obligation under the Separation Agreement and the Ancillary Agreements are, and following the Spinco Distribution may continue to be, the legal or contractual liabilities or obligations of another party. Each such party that continues to be subject to such legal or contractual liability or obligation will rely on the applicable party that assumed the liability or obligation or the operation of the Business applicable party that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like undertook an indemnification obligation with respect to any employee of the Seller that does not accept employment liability or obligation, as applicable, under the Separation Agreement, to satisfy the performance and payment obligations or indemnification obligations with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation respect to such legal or like payments to any director, officer contractual liability or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerobligation.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer is not assume, assuming or be liable for, agreeing to pay or discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliatesSubsidiaries, on whether known or unknown, fixed or contingent, asserted or unasserted, and not satisfied or extinguished (the “Excluded Liabilities”), notwithstanding any other handprovision of this Agreement:
(i) all Debt (except to the extent reflected in the Final Closing Statement; provided that Seller shall use its reasonable efforts to remove all Debt of a type described in clause (a) of the definition thereof from the Transferred Entities prior to the Closing);
(fii) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) Liability to the extent arising out of or resulting from relating to any Excluded Asset or the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of business conducted by Seller arising by reason of any violation of any Law or any requirement of any Governmental Bodyits Subsidiaries (other than the Business), including all Liabilities arising fromin each case of this Section 2.01(d)(ii) whether the same shall arise prior to, related to on or in connection with FCC enforcement actionsfollowing the Closing Date and except, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing Date, and income and similar Taxes, of a type not described otherwise set forth in Section 7.11, that are imposed as a result of the sale of the Purchased Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement2.01(d)(iii);
(kiii) any Liabilities Liability for Taxes for any taxable period (or portion thereof) ending on or before the Closing Date; provided that for purposes of this Section 2.01(d)(iii), Liability for Taxes shall be calculated without taking into account any net operating loss, tax credit, or other tax attribute of the Seller for IndebtednessSwedish Transferred Entities otherwise available to reduce, offset or eliminate such Taxes;
(liv) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof Liability expressly retained by Seller on or prior to the Closing Date;
(m) 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 its Subsidiaries pursuant to the Closing Date;
Exhibit E hereof (n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like including with respect to any employee Parent Plans and any pension plans of Seller or any of its Subsidiaries other than the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this AgreementDedicated Pension Plans);
(qv) any other than (A) accounts payable exclusively between or among the Transferred Entities and all (B) Liabilities of Seller or any of its Subsidiaries for salariesadvances made under the Trade Payables Program, commissionsany Liability for any accounts payable (including trade accounts payable) to, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of to, Seller or any of its Subsidiaries (Subsidiaries, which accounts payable or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities Liability shall be retained by terminated without further payment or performance and remain Liabilities and obligations of Seller.shall cease to have further force or effect at the Closing;
(vi) any Legacy Liability; and
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Danaher Corp /De/)
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such The Excluded Liabilities are known or unknownwill remain the sole responsibility of and will be retained, absolutepaid, contingentperformed and discharged solely by Sellers. For the avoidance of doubt, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: will expressly include (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities of Seller for that are caused by the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether actions or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any inactions of the Purchased Assets pursuant Company with respect to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller projects completed on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior except to the Closing Date based on any express extent included in the Working Capital Adjustment, (ii) all Liabilities related to Taxes, (iii) all product liability, all returns, and all warranty or implied warranty arising due liability with respect to sales made by the statements or conduct of Seller or Seller’s employees or agents Company prior to the Closing Date;
, (jiv) any and all Taxes Liabilities arising from out of or with respect relating to the Purchased Assets Company, the Business or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending Assets on or prior to the 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 Assets pursuant or relating to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach any circumstances, events or alleged breach thereof by Seller actions occurring on or prior to the Closing Date;
, except to the extent included as Assumed Liabilities, (mv) any and all Liabilities to current or former employees 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;
Company (n) any and any dependents of such employees), whenever arising, including without limitation Liabilities for the return by to provide benefits to such employees under any customer of Seller of products sold or distributed by Seller on or prior to the Closing benefit plans or any Liabilities for a warranty claim for any product associated with severance, commission or service sold, distributed overtime payments due or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising becoming due to the statements current or conduct former employees of Seller the Company, whether arising from the consummation of the transactions contemplated hereby, or Seller’s employees otherwise, and any claims relating to any Employee Benefit Plans, any other benefit or agents;
compensation plan, fund, arrangement or agreement of the Company, or the termination thereof, whenever accruing or arising, including without limitation, Liabilities to provide benefits to consultants that may arise or have arisen by operation of law or otherwise, and (ovi) any and all other Liabilities of the Seller arising out of Company not specifically included in 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Assumed Liabilities. Notwithstanding any provisions in this Agreement In the event post-Closing that the Company is required to the contraryresolve a warranty claim, Purchaser agrees to perform such warranty work so long as it is assuming only compensated by the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerCompany on a cost plus 15% basis.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding anything to the contrary contained in this Agreement, other than the Assumed Liabilities, the Buyer shall not assume, assume or be liable for, for any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed of the Liabilities shall be referred of any Seller or relating to as the operation of the Restaurants (the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown”), absoluteincluding, contingentwithout limitation, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all of the Liabilities of and/or on behalf of any Seller for costs and expenses incurred in connection with under this Agreement or and the negotiation and consummation of the transactions contemplated by this Agreementother Documents;
(b) any and all employee-related of the Liabilities of any Seller accrued for expenses, Taxes or fees incident to or arising out of actionsthe negotiation, omissions preparation, approval or events occurring prior to authorization of this Agreement, the other Documents or on the Closing Dateconsummation (or preparation for the consummation) of the transactions contemplated hereby or thereby (including all attorneys’ and accountants’ fees, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, brokerage or (vi) discrimination complaintsfinders’ fees incurred by or imposed upon any Seller);
(c) any and all Liabilities of any Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Sellerany indebtedness, regardless of whether Funded Indebtedness or not such employees accept employment with Purchaser pursuant to Section 8.1otherwise;
(d) any and all Liabilities owed toLiability of any Seller under any other agreement, contract, commitment, document, license or claims of, Seller’s creditors, whether lease arising before out of events occurring prior to the First Closing (for the Restaurants other than the Topanga Restaurant) or after the Second Closing Date, which may be asserted against Purchaser (for the Topanga Restaurant) arising out of a breach or any alleged breach thereof that occurred as of or prior to the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesClosing;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between arising in connection with the Business, on the one hand, and Seller or any of its affiliates, on the other handExcluded Assets;
(f) any Liability of any Seller with respect to any Taxes (other than ad valorem taxes), including payroll tax, business and all Liabilities relating occupancy tax and sales tax payable with respect to litigation periods ending on or before the First Closing Date (ifor the Restaurants other than the Topanga Restaurant) involving or the Business, Second Closing Date (for 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 LiabilitiesTopanga Restaurant);
(g) any Liability for ad valorem taxes and all Liabilities assessments (including any special or supplemental assessments) on the Purchased Assets allocable to Seller under Section 9.10 with respect to periods ending on or before the Closing Date on which such Purchased Assets are acquired (without regard to when such taxes are assessed or payable);
(h) any Liability of any Seller (i) arising by reason of any violation or alleged violation of any Liquor License, Permit or any Law or any requirement of any Governmental Entity, (ii) arising under any Environmental and Safety Requirements; including, without limitation, those with respect to the ownership or operation of the Restaurants or the assets and properties of the Restaurants by any Seller or any other Person at any time prior to the First Closing (for the Restaurants other than the Topanga Restaurant) or the Second Closing (for the Topanga Restaurant); (iii) arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related Entity relating to or in connection with FCC enforcement actionsaffecting the employment by Sellers of its employees, and (iv) arising by reason of any breach or alleged breach by any Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, in each case, any such case to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the First Closing Date;
(hfor the Restaurants other than the Topanga Restaurant) or the Second Closing (for the Topanga Restaurant), notwithstanding that the date on which any and all Liabilities relating to action or arising out of Excluded Assets, including Excluded Contractsclaim is commenced or made is after such Closing;
(i) any Liabilities of any Seller for which the Buyer may become liable as a result of or in connection with the failure by the Seller to fully and all Liabilities for the return by properly comply with any customer of Seller of products sold bulk sales or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Datetransfers laws;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion Liabilities of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller arising out of the injury to or death of any person 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 of components thereof) ), sold, distributed or otherwise disposed of or for services performed by or on behalf of the any Seller, in each caseto the extent any of such Liabilities result from or arise out of events, facts or circumstances occurring or existing on or prior to the First Closing Date(for the Restaurants other than the Topanga Restaurant) or the Second Closing (for the Topanga Restaurant), notwithstanding that the date on which any action or claim is commenced or made is after such Closing;
(pk) any and all Liabilities of any Seller relating to any legal action or Proceeding arising out of or in connection with any Seller’s conduct of the Business prior to the Closing or any other conduct of any Seller or its managers, officers, directors, employees, partners, stockholders, consultants, agents or advisors, whether or not disclosed on the Schedules hereto, including, without limitation the pending or threatened matters described in Schedule 1.4(k) (the “Known Claims”);
(l) any Liabilities of any Seller (i) for severance pay or the like with respect to any employee of the any Seller that is not offered, or that does not accept accept, employment with the Purchaser Buyer upon completion of the transaction contemplated by this AgreementTransactions, (ii) for wages or other compensation payable to any employee of any Seller for periods prior to the First Closing; (iii) for COBRA continuation coverage for M&A qualified beneficiaries, as defined in Section 6.7; (iv) for accrued but unpaid vacation pay owed to the Sellers’ employees; or (v) for amounts owed to eligible employees pursuant to the Sellers’ Manager Incentive Plan for services performed prior to the First Closing Date;
(m) any Liabilities of any Seller for bonuses or like payments to any partner, director, officer or employee of such Seller for the period ending on or prior to the Closing;
(n) any Liabilities relating to any Plan of any Seller;
(o) any Liability of any Seller for worker’s compensation based on an event occurring prior to the Closing Date;
(p) any Liabilities of any Seller to any partner, stockholder or Affiliate of such Seller;
(q) any and all Liabilities of any Seller for salariesexpenses, commissions, bonuses, deferred compensation Taxes or like payments fees incident to any director, officer or employee arising out of the Seller for negotiation, preparation and execution of the period prior to New Real Property Leases or the Closing, except as otherwise expressly provided herein; andTopanga Lease Extension;
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement Liabilities arising or pertaining to activities conducted by either Seller after the Closing Date;
(s) any Liabilities arising or pertaining to the contrary, Purchaser is assuming only Existing Calabasas Lease or the Assumed Existing La Quinta Lease or the Sellers’ termination thereof;
(t) any Liabilities and is not assuming associated with the Sellers’ fee ownership of the Coalinga Real Property;
(u) any other Liability of any Seller not expressly assumed by the Buyer under Section 1.3 including any Liabilities not appearing on the face of the Closing Date Balance Sheet (excluding the notes thereto), any contingent Liabilities, Liabilities arising out of transactions entered into at or its Subsidiaries (prior to the First Closing, any damage, accident, injury or death occurring, or the facts giving rise to which occurred, prior to the First Closing or any predecessor owner state of facts existing at or prior to the First Closing, regardless of when asserted, which are not expressly assumed in Section 1.3); Each Seller hereby acknowledges that the Sellers are retaining the Excluded Liabilities, and the Sellers shall pay, discharge and perform all or part of the Business) of whatever nature. All such other Excluded Liabilities shall be retained by and remain Liabilities and obligations of Sellerpromptly when due.
Appears in 1 contract
Sources: Asset Purchase Agreement (Red Robin Gourmet Burgers Inc)
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” all of which ”). Seller shall retain (and remain liable for (whether such the Stockholder shall cause Seller to), cause each of its Affiliates to pay, and pay and satisfy as and when due all Excluded Liabilities are known or unknownwhich each is respectively obligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but shall not be limited to, each of the following LiabilitiesLiabilities of Seller or Stockholder or any Affiliate:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including the fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of or relating to the Business for any period or the negotiation and Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities Agreement or that are the responsibility of Seller accrued pursuant to Section 6.09; or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, other Taxes of any kind or description (iv) withholdings, (v) charges including any Liability for Taxes that becomes a Liability of unfair labor practices, Buyer under any common law doctrine of de facto merger or (vi) discrimination complaintstransferee or successor liability or otherwise by operation of contract or Law);
(c) any and all Liabilities relating to or arising out of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Excluded Assets;
(d) any and all Liabilities owed to, in respect of any pending or claims threatened Action arising out of, Seller’s creditors, whether arising before relating to or after otherwise in respect of the Closing Date, which may be asserted against Purchaser operation of the Business or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property regardless of the basis therefore and whether or not such claim arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller;
(g) any Liabilities arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(h) any and all Liabilities relating to for any present or arising out former employees, officers, directors, retirees, independent contractors or consultants of Excluded AssetsSeller, including Excluded Contractsany Liabilities associated with any claims for wages or other benefits, commissions, bonuses, expense reimbursement, paid sick leave, accrued vacation or other paid time off, workers’ compensation, severance, retention, termination or other payments;
(i) any and all Environmental Claims, or Liabilities for under Environmental Laws, to the return by any customer extent arising out of Seller of products sold or distributed by Seller relating to facts, circumstances or conditions existing on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior otherwise to the Closing Date based on extent arising out of any express warranty actions or implied warranty arising due to the statements or conduct omissions of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation trade accounts payable of Seller not otherwise set forth on Section 2.03(a) of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Disclosure Schedules;
(k) any Liabilities relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by Sellers’ customers to Seller for Indebtednesson or before the Closing Date; (ii) did not arise in the ordinary course of the Business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(l) any and all Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 7.02 as Seller under any Contract, other than the Purchased Contracts, and 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 DateIndemnitees;
(m) any Liabilities under any other Contract, including Intellectual Property Agreements, (i) which are not validly and all effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by Seller arising by reason of any violation or alleged violation of any Law or any requirement of any Governmental Body on or such Contracts prior to the Closing Date;
(n) any and any Liabilities for the return by any customer associated with debt, loans or credit facilities of Seller of products sold or distributed by Seller on or prior and/or the Business owing to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;financial institutions; and
(o) any and all Liabilities of the Seller arising out of, in respect of or in connection with 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 failure by Seller or any other legal of its Affiliates to comply with any Law 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerGovernmental Order.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” ”). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all of which Seller shall retain and remain liable for (whether such Excluded Liabilities related to the Business which they are known or unknownobligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement or Agreement, the negotiation other Transaction Documents and consummation of the transactions contemplated by this Agreementhereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: Liability for (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities Taxes of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees (or any equityholder or Affiliate of Seller, regardless of whether ) or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Assumed Liabilities for any Pre-Closing Date, or Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Seller pursuant to the extent Section 6.14; or (iii) other Taxes of Seller (or any equityholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any equityholder or Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities arising out of or resulting from relating to Seller’s ownership or operation of the Excluded Business and the Purchased Assets on or Excluded Liabilitiesprior to the Closing Date;
(d) any Liabilities relating to or arising out of the any asset of Seller that are not Purchased Assets;
(e) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(f) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller on or prior to the Closing Date;
(g) any and all Liabilities of Seller arising by reason recall, design defect or similar claims of any violation of any Law products manufactured or sold or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing service performed by Seller on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller arising under or in connection with any Contract, other than the Purchased Contracts, and Benefit Plan providing benefits to any and all Liabilities present or former employee(s) 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;
(mi) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for a warranty claim for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(j) any product Environmental Claims, or service soldLiabilities under Environmental Laws, distributed to the extent arising out of or performedrelating to facts, as the case may be, by the Seller circumstances or conditions existing on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due otherwise to the statements extent arising out of any actions or conduct omissions of Seller;
(k) any trade accounts payable of Seller to third parties in connection with the Business that remain unpaid as of the Closing Date (the “Accounts Payable”);
(l) any Liabilities of the Business on or Seller’s employees prior to the Closing Date relating or agentsarising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Seller Indemnitees;
(n) any Liabilities on or prior to the Closing Date under (i) the Excluded Contracts or (ii) any other Contracts, including Intellectual Property Licenses, (A) which are not validly and effectively assigned to Buyer pursuant to this Agreement; or (B) to the extent such Liabilities arise out of or relate to a breach by Seller of such Contracts prior to Closing;
(o) any and all Liabilities associated with debt, loans or credit facilities of Seller and/or the Seller arising out of the injury Purchased Assets owing to or death of financial institutions;
(p) 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 the Seller, in each case, Liabilities on or prior to the Closing Date;
(p) any and all Liabilities Date arising out of, in respect of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment in connection with the Purchaser upon completion failure by Seller or any of the transaction contemplated by this Agreement;its Affiliates to comply with any Law or Governmental Order; and
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller’s Selling Expenses.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer shall not assume, assume or be liable forobligated to pay, perform or otherwise discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all liability or obligation of which Seller shall retain and remain liable for (whether such Excluded Liabilities are Seller, direct or indirect, known or unknown, absolute, absolute or contingent, liquidated or unliquidatednot expressly assumed by Buyer pursuant to the Instrument of Assumption (all such liabilities and obligations not being assumed being herein called the "EXCLUDED LIABILITIES") and, due or notwithstanding anything to become duethe contrary in SECTION 2.3, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each none of the following Liabilitiesshall be Assumed Liabilities for purposes of this Agreement:
(a) any and all Liabilities liabilities in respect of and/or on behalf of Taxes for which Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreementis liable pursuant to SECTION 7.2;
(b) any intercompany payables and all employee-related Liabilities other liabilities or obligations of ICAT to Seller accrued or arising out any of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsits Affiliates;
(c) any costs and all Liabilities expenses incurred by Seller incident to its negotiation and preparation of Seller for the provision of health plan continuation coverage in accordance this Agreement and its performance and compliance with the requirements of COBRA agreements and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1conditions contained herein;
(d) any and all Liabilities owed to, liabilities or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or obligations in respect of any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesExcluded Assets;
(e) any and all Liabilities under any intercompany loans, accounts liabilities in respect of the claims or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handproceedings described in SCHEDULE 5.17;
(f) accrued liabilities of any kind (except for warranty obligations on Seller Agreements listed on Schedule 5.15 and all Liabilities relating marked as "assumed") required to litigation (i) involving be reflected on the Business, Balance Sheet prepared in accordance with the Purchased Assets or Seller and existing Agreed Accounting Principles which were not reflected thereon as of the Closing Date, or (ii) to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilitiesa dollar amount;
(g) any liabilities and all Liabilities obligations related to, associated with or arising out of Seller arising by reason (i) the occupancy, operation, use or control of any violation of any Law Seller's or any requirement ICAT's Property on or prior to the Closing Date or (ii) the operation of any Governmental Body, including all Liabilities arising from, related the Business on or prior to or in connection with FCC enforcement actionsthe Closing Date, in each casecase incurred or imposed by any Environmental Law, including, without limitation, any Release of any Contaminant on, at or from (1) the ICAT Property, (including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder, or any conditions whatsoever on, under or in the vicinity of such real property) or (2) any real property or facility owned by a third Person to which Contaminants generated by the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or Business were sent prior to the Closing Date;
(h) any and all Liabilities product liability or claims for injury to person or property, regardless of when made or asserted, relating to products manufactured, distributed or arising out of Excluded Assets, including Excluded Contracts;sold by ICAT or services performed by ICAT prior to the Closing Date.
(i) any and all Liabilities for the return by any customer obligations of Seller to its employees, including without limitation any expenses of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service soldSeller's employees, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents incurred prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” ”). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all of which Seller shall retain and remain liable for (whether such Excluded Liabilities which they are known or unknownobligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement or Agreement, the negotiation Ancillary Documents and consummation of the transactions contemplated by this Agreementhereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitationLiability for: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities Taxes of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees (or any stockholder or Affiliate of Seller, regardless of whether ) or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Seller and pursuant to Section 6.11; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities with respect to the operation of the Seller’s business prior to the Closing including, without limitation, any accounts payable of Seller existing as of the Closing Date;
(e) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the pre-Closing operation of the Business or the Purchased Assets to the extent such Action relates to such pre-Closing operation;
(f) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards, or other related product defects of any products manufactured or sold or any service performed by Seller prior to the Closing;
(iig) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller prior to the Closing;
(h) any Liabilities of Seller arising under or in connection with any benefit plan providing benefits to any present or former employee of Seller;
(i) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(j) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or resulting from the Excluded Assets relating to facts, circumstances or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or conditions existing on or prior to the Closing Date;
(h) any and all Liabilities relating or otherwise to or the extent arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer actions or omissions of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that: (i) do not constitute part of the Purchased Assets issued by the Business’ customers to Seller for Indebtednesson or before the Closing; and (ii) did not arise in the ordinary course of business;
(l) any and all Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller under (including with respect to any Contractbreach of fiduciary obligations by same), other than the Purchased Contracts, and any and all Liabilities except for indemnification of same pursuant to Section 8.03 as Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller on or prior to the Closing DateIndemnitees;
(m) 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 under the Closing DateExcluded Contracts;
(n) any and any Liabilities for the return by any customer associated with debt, loans or credit facilities of Seller of products sold or distributed by Seller on or prior and/or the Business owing to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;financial institutions; and
(o) any and all Liabilities of the Seller arising out of, in respect of or in connection with 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 failure by Seller or any other legal of its Affiliates to comply with any Law 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerGovernmental Order.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding any provision in this Agreement to the contrary, Buyer shall not assume, assume and shall not be obligated to assume or be obliged to pay, perform, discharge or otherwise satisfy any Liability, Claim or Encumbrance of Sellers, and Sellers shall be solely and exclusively liable forwith respect to all Liabilities, any liabilities Claims and Encumbrances of Sellers, other than the Assumed Liabilities (such Liabilities other than Assumed Liabilities, collectively, the “Excluded Liabilities”). Without limiting the foregoing, but subject to the last sentence of this Section 1.4, Excluded Liabilities shall include the following Liabilities of Sellers:
(a) Liabilities which are not Assumed Liabilities. All such liabilities which , including but not limited to all accounts payable, accrued expenses, Taxes (except those at are not Assumed Liabilities shall be referred the responsibility of Buyer under Section 7.1(b)), Claims asserted in litigation against any Seller, obligations to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become dueSeller’s lenders, and whether other Liabilities not specifically set forth in Section 1.3 and any claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each under sections 503 and 507 of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this AgreementBankruptcy Code;
(b) Liabilities associated with any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsExcluded Assets;
(c) Liabilities associated with any and all Liabilities indebtedness of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of any Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actionsclaims, in each caselitigation and proceedings (whether instituted prior to or after Closing) for acts or omissions that occurred, to the extent such Liability results or arise from or arises out of eventsevents that occurred, facts or circumstances occurring or existing on or prior to the Closing Date;
(he) any penalties, fines, settlements, interest, costs and all Liabilities relating to or expenses arising out of Excluded Assetsor incurred as a result of any actual or alleged violation by any Seller of any Legal Requirement or breach by Seller of any Contract;
(f) except as otherwise set forth in this Agreement, all Liabilities for Taxes of any nature;
(g) Liabilities arising out of or resulting from layoffs or termination of Employees by Seller at or prior to Closing (including Excluded Contractswithout limitation all accrued and unpaid vacation, payroll taxes, related expenses, and/or the consummation of the Transactions sufficient in the aggregate to require notice under the WARN Act, as well as any other Liabilities to any of Seller’s Employees under Seller’s employee stock option plan;
(h) all Liabilities for expenses (i) relating to the negotiation and preparation of this Agreement and (ii) relating to the Transactions, in each case to the extent incurred by Seller and including those related to legal counsel, accounting, brokerage and investment advisors fees and disbursements;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior Liability to the Closing Date or for a warranty claim for any product or service soldDMS (other than pursuant to an Assumed Contract, distributed or performedif any, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Datewith DMS);
(j) any Liability under any Assigned Lease and all Taxes arising from Interest or with respect to Contract that arises after the Purchased Assets Closing but that arises out of or the operation of the Business that are incurred in or attributable relates to any periodbreach, occurrence or any portion of any period, ending on or circumstance that occurred prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);Closing; and
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities with respect to any Employee or other Benefit Plans. The parties hereto acknowledge that Buyer is not agreeing to assume any Liability of any Seller under any Contractwhether related to the Assets or otherwise, other than the Purchased ContractsAssumed Liabilities, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions nothing in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by construed as an agreement otherwise. For the avoidance of doubt, in the event of any conflict between the terms of Section 1.3 and remain Liabilities and obligations this Section 1.4, the terms of SellerSection 1.3 shall govern.
Appears in 1 contract
Excluded Liabilities. Purchaser will It is expressly understood and agreed that, notwithstanding anything to the contrary in this Agreement, Buyer and its Affiliates (including the Acquired Companies) shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which or obligations of the Asset Sellers or any of their respective Affiliates that are not Assumed Liabilities shall be referred to as (collectively, the “Excluded Liabilities,” ”), and all Excluded Liabilities shall remain the obligations of the Asset Sellers from and after the Closing Date. The Excluded Liabilities include all of the following liabilities:
(i) All obligations and liabilities assumed by, or which Seller shall retain are otherwise expressly the responsibility of, PKI or one of its Affiliates (other than the Acquired Companies) pursuant to this Agreement or the Ancillary Agreements;
(ii) All liabilities and remain liable for obligations to make payments or provide benefits to Business Employees pursuant to (A) retention agreements, change of control agreements and/or bonus agreements, each relating to the consummation of the transaction contemplated by this Agreement (whether such Excluded payments are contingent upon the occurrence of the Closing alone or in connection with another event that occurs before the Closing), and (B) agreements providing for severance payments and benefits and payable with respect to a termination of the Business Employee’s employment that occurs prior to, and not in connection with, the Closing, in each case, entered into prior to the Closing between PKI or one of its Affiliates and such Business Employees, including the employer portion of any applicable payroll, employment or similar Taxes or any “tax gross-up” payment due to payable as a result of or in connection with any payments described in the foregoing;
(iii) Liabilities are for contingent consideration set forth in Section 1 of that certain Memorandum, by and between ▇▇. ▇▇▇ Jiapeng (“Mr. Jiapeng”) and PerkinElmer Health Sciences B.V., a limited liability company incorporated under the laws of Netherlands (“PE Netherlands”), dated July 10, 2020, which modifies that certain Earnout Payment Side Letter, by and between Mr. Jiapeng and PE Netherlands, dated August 8, 2019, each in connection with that certain Equity Transfer Agreement, by and between Mr. Jiapeng and PE Netherlands, dated August 8, 2019; provided that Buyer shall use commercially reasonable efforts to provide, during normal business hours and in a manner so as not to unreasonably interfere with the conduct of the Business, such reasonable cooperation as PKI may reasonably request with the calculation of such liabilities, including providing any financial information necessary to perform such calculations, which shall be deemed Information subject to Section 8.1;
(iv) All (A) defined-benefit type pension, termination indemnity or other defined benefit-type liabilities with respect to (1) the plans of the PKI Group other than the Acquired Defined Benefit Plans (including for the avoidance of doubt, all defined benefit obligations and liabilities under or relating to the PerkinElmer (UK) Pension Scheme) and/or (2) Former Business Employees and Non-Accruing Employees, to the extent permitted to be excluded under applicable Law and (B) retiree medical liabilities of the Sellers;
(v) All obligations and liabilities not related to or arising out of the Acquired Assets or the Business;
(vi) All obligations and liabilities of every kind, nature, character and description, whether known or unknown, absoluteprimary or secondary, direct or indirect, absolute or contingent, liquidated or unliquidated, due or to become due, in each case to the extent arising out of or relating to the Excluded Assets, whether before, on or after the Closing Date;
(vii) All liabilities and whether claims obligations relating to or arising out of (A) the portions of the Shared Contracts (as defined below) that are liabilities or obligations of the Retained Business (as defined below) pursuant to Section 1.7 and (B) all accounts payable in existence at the Closing Date (other than as set forth in Section 1.1(d)(x));
(viii) The liabilities set forth on Schedule 1.1(e)(viii) attached hereto;
(ix) All liabilities for (i) any Taxes imposed on any Asset Seller with respect to the Acquired Assets or the Business for any Pre-Closing Tax Period, including all Taxes of the Asset Sellers relating to the operation of the Business or the acquisition or ownership of any Acquired Assets in any Pre-Closing Tax Period, (ii) any Transfer Taxes for which PKI is responsible pursuant to Section 7.1(d) or (iii) any obligations of any Asset Seller in respect of payroll, social security, employment or similar Taxes that have been deferred pursuant to the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136) and any administrative or other guidance or executive order published with respect thereto are asserted before by any Governmental Entity (including IRS Notices 2020-22 and 2020-65);
(x) All liabilities and obligations arising as a result of or after attributable to the Closing). Excluded Liabilities shall include, Pre-Closing Transactions (but not be limited to, each excluding any liabilities and obligations to the extent assumed by the Specified Companies as part of the Pre-Closing Transactions in accordance with the proviso following Liabilities:Section 1.1(d)(xvi) subject to the terms and conditions of Section 8.5;
(axi) All costs, fees, expenses (including reasonable attorney’s fees and investigation costs) and other monetary obligations or liabilities (including any settlement amounts, fines or penalties) arising out of or related to the matter set forth on Schedule 1.1(e)(xi) hereto;
(xii) All liabilities and all Liabilities of and/or obligations relating to or arising under the Connecticut Transfer Act (as defined below) or ISRA (as defined below);
(xiii) All liabilities and obligations relating to any Proceedings from or on behalf of Seller PKI shareholders against PKI, Buyer or their respective Affiliates arising out or as a result of the announcement of this Agreement or the transactions contemplated hereby or any disclosure documents in connection with any PKI shareholder vote in connection with the transactions contemplated by Section 8.12;
(xiv) All costs and liabilities relating to transferring, separating, assigning, otherwise splitting up or providing services under the Transition Services Agreement with respect to the contracts set forth on Schedule 1.1(e)(xiv); excluding any costs and liabilities (i) imposed by the counterparty to such contracts in accordance with their current terms that are not triggered by the transactions contemplated by this Agreement or (ii) incurred by Buyer and its Affiliates (including any attorney’s fees or fees of consultants or other service providers) related to the preparation, review, negotiation and execution of the documentation necessary to effect the transfer, separation, assignment, or otherwise splitting up or provision of services under the TSA with respect to such contracts;
(xv) All liabilities and obligations of the Asset Sellers for costs transaction fees and expenses incurred in connection with this Agreement or any Ancillary Agreement or the negotiation and consummation of the transactions contemplated by this Agreementhereby (including the Pre-Closing Transactions) or thereby, including the negotiation and execution hereof and thereof (and the auction process and pursuant to discussions with other bidders, including fees payable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC);
(bxvi) All Losses, rights, causes of action, judgments, claims and demands in relation to the employment, engagement and/or termination of any and all employee-related Liabilities employee of the Acquired Companies or Asset Sellers who is not a Business Employee (each a “Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (iRetained Employee”) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsat any time;
(cxvii) All obligations and liabilities under all Employee Benefit Plans or Foreign Benefit Plans sponsored, maintained, or contributed to by PKI or any of its Affiliates other than the Acquired Benefit Plans, all obligations and all Liabilities liabilities under the Acquired Defined Benefit Plans with respect to employees, officers and directors of Seller for Sellers and their Affiliates who (A) do not become New Buyer Employees or (B) are former employees, officers and directors of Sellers and their Affiliates (including the provision Acquired Companies) (“Former Business Employees”), or who are New Buyer Employees who are no longer accruing benefits under an Acquired Defined Benefit Plan (the “Non-Accruing Employees”), including the employer portion of health plan continuation coverage any applicable payroll, employment or similar Taxes or any “tax gross-up” payment due or payable as a result of or in accordance connection with any payments or benefits due under the requirements of COBRA foregoing;
(xviii) Any obligations and Sections 601 through 608 of ERISA liabilities relating to employees of Selleror arising under any payables, receivables, loans, notes, advances, liabilities and other obligations, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed totheir maturity, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
Business (e) any and all Liabilities under any intercompany loans, accounts or Contracts between including the BusinessAcquired Companies), on the one hand, and Seller or PKI and any of its affiliatessubsidiaries (other than any Acquired Companies), on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
Affiliate Business Arrangements (h) excluding any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing Date, and income and similar Taxes, of a type not described in Section 7.11Ancillary Agreement), that are imposed as a result of the sale of the Purchased Assets pursuant to this Agreement (exceptPKI does not settle, in any casedischarge, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contractoffset, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 repay or otherwise disposed of or services performed by or on behalf of the Seller, eliminate in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like accordance with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period Section 4.5 prior to the Closing, except as otherwise expressly provided hereinfor arrangements described on Schedule 4.5; and
(rxix) All obligations and liabilities for claims relating to the Business under each Asset Seller’s self-insurance arrangements to the extent incurred prior to the Closing. The Asset Sellers shall pay, perform and discharge when due in accordance with the respective terms and subject to the respective conditions hereof and thereof all obligations and liabilities of the Asset Sellers that are Excluded Pre-Petition Liabilities. Notwithstanding From and after the Closing, PKI shall indemnify Buyer in respect of, and hold Buyer harmless against, any provisions in this Agreement and all Damages incurred or suffered by Buyer or any of its Affiliates to the contrary, Purchaser is assuming only extent resulting from or constituting Excluded Liabilities (solely to the Assumed Liabilities and is extent such Damages are not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of recoverable under the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerR&W Policy).
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Perkinelmer Inc)
Excluded Liabilities. Notwithstanding any provision of this Agreement to the contrary, Purchaser will shall not assumeassume any liabilities, obligations, or be liable for, any liabilities which are not commitments of Seller relating to or arising out of the operation of the Business or the ownership of the Assets other than the Assumed Liabilities. All , and all such liabilities which are not Assumed Liabilities liabilities, obligations, and commitments shall be referred to as “retained by Seller (the "Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing"). Excluded Liabilities shall includeWithout limiting the generality of the foregoing, but not be limited to, each all of the following Liabilitiesshall be Excluded Liabilities for purposes of this Agreement:
(ai) All trade accounts payable, accrued payroll, and accrued employee benefits relating to the Business;
(ii) All Taxes (whether pursuant to existing laws and regulations or laws and regulations subsequently enacted by any and all Liabilities Governmental Authority) which arise from (A) the operation of and/or on behalf the Business prior to the Closing Date; (B) the ownership of Seller for costs and expenses incurred in connection with this Agreement the Assets prior to the Closing Date; or (C) the negotiation and consummation of the transactions contemplated by this Agreementherein;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll TaxesAll costs, expenses, liabilities, or obligations incurred by Seller incident to the negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein;
(iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any All liabilities 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities obligations of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to from or in connection with FCC enforcement actionsrecalls mandated by any Governmental Authority with respect to, in each caseor product liability claims relating to, to the extent such Liability results from products manufactured or arises out of events, facts or circumstances occurring or existing on or sold by Seller prior to the Closing Date;
(hv) All liabilities or obligations of Seller relating to any Environmental Damages arising out of (i) the ownership or operation of the Assets or the Business prior to the Closing or (ii) any and all Liabilities Release at, to, on or from the Real Property prior to the Closing Date, whether or not disclosed in any schedule to this Agreement or otherwise known to Purchaser;
(vi) All liabilities of Seller for the unpaid Taxes of any Person under Reg.
1. 1502-6 of the Code (or any other similar provision of state, local, or foreign law) as a transferee or successor, by contract, or otherwise;
(vii) All liabilities or obligations of Seller for borrowed money or evidenced by bonds, debentures, notes, drafts, or similar instruments;
(viii) All liabilities or obligations of Seller under any of the Plans or relating to payroll, vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans, or any other employee plans or benefits of any kind for employees of Seller;
(ix) All liabilities or obligations of Seller relating to any claims by employees of Seller, whether pending as of Closing or arising after Closing, due to acts, alleged acts, or omissions of Seller under any federal labor or employment laws or state laws relating to or arising out of Excluded Assetsthe employment relationship with Seller or the termination thereof, including Excluded Contractsincluding, without limitation, any claims under the National Labor Relations Act, Fair Labor Standards Act, Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, and the Civil Rights Act of 1866 and 1970;
(ix) All liabilities or obligations under any employment, severance, retention, or termination agreement between Seller and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Dateits employees;
(jxi) any and all Taxes arising from All liabilities or obligations of Seller with respect to any actions, suits, proceedings, or possible claims, whether such actions, suits, proceedings, or possible claims are currently pending, threatened, contingent, or otherwise, to the Purchased Assets or extent such claims arise out of the operation conduct of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing Date, including any such matters disclosed on SCHEDULE 2.1.5 and income and similar Taxeswithout regard to whether any such actions, of a type not described in Section 7.11suits, that are imposed as a result of the sale of the Purchased Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or writtenproceedings, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller arising out of the injury to or death of any person or animal or damage to or destruction of any tangible property, whether based possible claims are described 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinSCHEDULE 2.1.5; and
(rxii) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement All liabilities or obligations relating to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerExcluded Assets.
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding any disclosures made to the Buyer or its agents in the conduct of their due diligence investigations of the Seller or anything herein to the contrary, the Buyer shall not assumeassume any of the liabilities or obligations of the Seller other than the Assumed Liabilities, and the Buyer shall not be or be become liable forfor any claims, any demands, liabilities which are not or obligations of the Seller other than the Assumed Liabilities. All such liabilities which are Without limiting the foregoing, the Buyer shall not Assumed Liabilities shall be referred assume or agree to as “Excluded Liabilities,” all of which perform, pay or discharge, and the Seller shall retain and remain unconditionally liable for (whether such Excluded Liabilities are and shall pay and satisfy in due course, all obligations, liabilities and commitments, fixed or contingent, known or unknown, absoluteaccrued or unaccrued, contingentdirect or indirect, c▇▇▇▇▇ or inchoate, perfected or unperfected, liquidated or unliquidated, due or to become dueof the Seller other than the Assumed Liabilities (the “Excluded Liabilities”), and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, including but not be limited to, each of to the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement or the negotiation and consummation of the transactions contemplated by this Agreementhereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: Liability (i) accrued salaries and wagesfor Taxes of Seller (or any equity holder or Affiliate of any of the foregoing), (ii) accrued vacation and sick payfor Taxes relating to the Business, the Acquired Assets or the Assumed Liabilities for any pre-Closing Taxes, or (iii) accrued payroll Taxes, (iv) withholdings, (v) charges for Taxes that arise out of unfair labor practices, the consummation of the transactions contemplated hereby or (vi) discrimination complaintsthat are the responsibility of the Seller;
(c) any Liabilities relating to or arising out of the Excluded Assets, as well as with respect to Sydson Resources 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Sydson Energy;
(d) any and all Liabilities owed to, in respect of any pending or claims threatened Action arising out of, Seller’s creditors, whether arising before relating to or after the Closing Date, which may be asserted against Purchaser or any otherwise in respect of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as operation of the Closing Date, Business or (ii) to the extent arising out of or resulting from the Excluded Acquired Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(e) any Liability based on any claim which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller in connection with any of the services provided by Seller or the Business;
(f) any Liabilities of Seller arising under or in connection with any benefit plan providing benefits to any present or former employee of Seller pre-Closing;
(g) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments pre-Closing;
(h) any and all Liabilities relating to or arising out pre-Closing trade accounts payable of Excluded Assets, including Excluded ContractsSeller;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed the Business relating or arising from unfulfilled commitments, purchase orders, customer orders or work orders entered into, issued by or otherwise pertaining to Seller on or the Business at any time prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior (other than leases that have been negotiated but not executed and relate to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DateAcquired Assets);
(j) any and all Taxes arising from Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to the Purchased Assets or the operation any breach of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreementfiduciary obligations by same);
(k) any Liabilities not arising under the Purchased Assets (i) which are not validly and effectively assigned to (and expressly assumed by) Buyer pursuant to this Agreement, (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement, or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller for Indebtednessof a Contract or other of its obligations prior to the Closing;
(l) any and all Liabilities associated with debt, loans or credit facilities of the Seller under and/or the Business owed or owing to any Contract, other than the Purchased Contracts, and Person as to 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;period pre-Closing; and
(m) any and all Liabilities arising out of, in respect of or in connection with the failure by any of the Seller arising by reason or any of any violation or alleged violation of its Affiliates to comply with any Law or any requirement of any Governmental Body on or prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerOrder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Texas South Energy, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, the Purchaser will shall not assume, assume or in any way be liable responsible for, any liabilities which are not and the Sellers shall remain obligated to pay, honor, perform and discharge, all of the Liabilities of the Sellers (other than the Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as ) (collectively, the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown”), absoluteincluding, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitieswithout limitation:
(a) any and all Liabilities arising out of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation relating to each Seller’s ownership, use or operation of the transactions contemplated Business and the Purchased Assets, in each case prior to the Closing arising by this Agreementoperation of law under any common law or statutory doctrine (other than the Assumed Liabilities);
(b) any and all employee-related Liabilities based upon, relating to, arising under or with respect to the Excluded Assets or the ownership, operation or use of Seller accrued any businesses of the Sellers or arising out any of actionstheir Affiliates, omissions other than the Business, whether before, at or events occurring prior to or on after the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsClosing;
(c) any all payables and all Liabilities indebtedness of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Sellers;
(d) any and all Liabilities owed to, directly or claims of, Seller’s creditors, whether indirectly arising before out of or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant related to any applicable bulk sales, bulk transfer breach of Contract occurring or similar laws and which do not otherwise constitute Assumed Liabilitiesexisting prior to the Closing;
(e) any and all Liabilities under any intercompany loans, accounts liabilities or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation obligations for (i) involving Taxes relating to the Business, the Purchased Assets or Seller and existing as of the Assumed Liabilities for the Pre-Closing DateTax Period, or (ii) Taxes relating to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental BodyBusiness, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of Assumed Liabilities for the Business that are incurred in or attributable to any period, or any portion of any period, Straddle Period ending on or prior to and including the Closing DateDate and (iii) any other Taxes of the Sellers or any of their equity holders or Affiliates, and income and similar Taxes, of a type not described in Section 7.11, including Taxes that are imposed arise as a result of the sale of the Business or the Purchased Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(kf) any Liabilities of the Seller for Indebtedness;
Sellers based upon, relating to, or arising under or with respect to (li) any and all Liabilities Seller Benefit Plan, (ii) the employment or termination of employment of (x) any employee of any Seller under any Contract, other than employed by the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller Purchaser following the Closing with respect to periods on or prior to the Closing Date;
and (my) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing at any time, and all Liabilities of Seller arising by reason of any violation or alleged violation of any Law (iii) workers’ compensation claims, unemployment insurance premiums or any requirement claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws of (x) any Governmental Body employee employed by the Purchaser following the Closing which relate to events occurring on or prior to the Closing Dateand (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing which relate to events occurring at any time;
(ng) any and any Liabilities for the return by any customer of Seller of products sold Liability based upon, arising under or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee Environmental Law, including any Liability of the Seller that does not accept employment with Sellers in any way pertaining to or arising from the Purchaser upon completion acts, omissions or strict liability of any predecessor of the transaction contemplated by this AgreementSellers;
(qh) any and all Liabilities of Seller for salariesLiability based upon, commissions, bonuses, deferred compensation arising under or like payments with respect to any director, officer matter disclosed or employee of the Seller for the period prior required to the Closing, except as otherwise expressly provided hereinbe disclosed in Schedule 5.16; and
(ri) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement Liability based upon, arising under or with respect to any warranty given or sold by the contrarySellers, Purchaser is assuming only the Assumed Liabilities and is not assuming regardless of whether any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerwarranty claim has been made to date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Excluded Liabilities. Purchaser will not assumeIn accordance with Section 8.1(a)(iii), each Key Securityholder shall jointly and severally indemnify and hold harmless each Parent Group Member from and shall directly pay and discharge after the Closing the following liabilities and obligations of the Surviving Corporation, whether direct or be liable forindirect, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated absolute or unliquidated, due or to become due, contingent (all such liabilities and whether claims with respect thereto are asserted before or after obligations being herein called the Closing). “Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:”):
(a) any and all Liabilities liabilities in respect of and/or on behalf of Seller Taxes for costs and expenses incurred in connection with this Agreement or which the negotiation and consummation of the transactions contemplated by this AgreementKey Securityholders are liable pursuant to Section 7.2;
(b) any costs and all employee-expenses incurred by the Key Securityholders, the Securityholder Representative, the Company or the Subsidiary incident to the negotiation and preparation of this Agreement, any related Liabilities of Seller accrued agreements and the performance and compliance with the agreements and conditions contained herein, other than the Selling Expenses which are paid on or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsare to be paid at the Closing hereunder;
(c) any Indebtedness, payables or other liabilities or obligations of the Surviving Corporation or the Subsidiary to the Securityholders or their Affiliates which are not reflected on the Closing Date Net Working Capital Schedule as a dollar amount, other than liabilities 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser obligations pursuant to Section 8.1this Agreement and the Company Ancillary Agreements;
(d) any and all Liabilities owed to, liabilities or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any obligations in respect of the Purchased Assets pursuant to any applicable bulk saleslawsuits, bulk transfer claims, proceedings or similar laws and which do not otherwise constitute Assumed Liabilitiesother investigations or actions set forth in Schedule 4.19;
(e) any and all Liabilities under liabilities or obligations in connection with or arising from any intercompany loansactual or alleged failure by the Company or the Subsidiary to comply prior to the Closing Date with any Requirements of Laws or Court Orders which are applicable to the Company or the Subsidiary or the assets or properties of the Company or the Subsidiary, accounts or Contracts between the Business, including any lawsuit, claim, proceeding, inquiry, civil investigative demand or investigation (including proceedings, inquiries or investigations by any Governmental Body and/or so-called “whistleblower” actions or investigations or qui tam complaints, even if the government has declined to intervene in such “whistleblower” or qui tam complaint) which may be brought or asserted based on the one hand, and Seller or related to any of its affiliates, on the other handsuch actual or alleged failure;
(f) accrued liabilities or obligations of any and all Liabilities relating kind required to litigation (i) involving the Business, the Purchased Assets or Seller and existing as be reflected on a balance sheet of the Company immediately after the Effective Time (taking into account the payments to be made hereunder) prepared in accordance with the Agreed Accounting Principles, which are not reflected on the Closing Date, or (ii) to the extent arising out of or resulting from the Excluded Assets or Excluded LiabilitiesDate Net Working Capital Schedule as a dollar amount;
(g) any and all Liabilities of Seller arising by reason liabilities or obligations of any violation Securityholder or its Affiliates other than the Company or the Subsidiary;
(h) any liabilities or obligations to current or former officers, directors or employees of any Law the Company or the Subsidiary other than indemnity obligations of the Surviving Corporation pursuant to Section 7.5(a) or any requirement obligations of any Governmental Body, including all Liabilities arising from, related Parent pursuant to or in connection with FCC enforcement actionsSection 7.7, in each case, to the extent such Liability results from liabilities or arises obligations arise out of eventsor are related to acts, facts omissions, events or circumstances occurring or existing on or other matters prior to the Closing Date;
(h) any Date and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contractsare not reflected on the Closing Date Net Working Capital Schedule as a dollar amount;
(i) any and all Liabilities for liabilities or obligations relating to infringement of the return by Intellectual Property rights of any customer other Person, regardless of Seller of products sold when made or distributed by Seller on or prior asserted, relating to the Closing Date Company, the Subsidiary or for a warranty claim for any product the Business and arising out of or service soldrelated to acts, distributed omissions, events or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents other matters prior to the Closing Date;; or
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerCompany Debt.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Navigant Consulting Inc)
Excluded Liabilities. Purchaser will not assumeOther than the Assumed Liabilities, or be liable forall Liabilities of Seller, the Business, Shareholder, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as of their Affiliates or otherwise (the “Excluded Liabilities,” all ”) shall remain the responsibility of which Seller, be paid, performed and discharged by Seller in accordance with its terms and shall retain and remain liable for (whether such Excluded Liabilities are known not be assumed by or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing)a liability of Buyer. Such Excluded Liabilities shall include, but not be limited towithout limitation, each of the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: Tax (i) accrued salaries and wageswith respect to Seller, Shareholder or any Affiliate of Seller or Shareholder for any period, (ii) accrued vacation incident to or arising as a consequence of the negotiation or consummation of this Agreement and sick paythe Transaction, or (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed incident to, arising out of or claims ofrelated to the conduct, Seller’s creditors, whether arising before use or after ownership of the Closing Date, which may be asserted against Purchaser Business or any of the Purchased Acquired Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(hb) all Indebtedness of Seller;
(c) except for the Assumed Liabilities, any Liability or obligation, owed by Seller or Shareholder as of the Closing Date, to or on behalf of any employees, executives, agents or independent contractors of Seller, as well as their dependents and beneficiaries, whether or not employed by Buyer after the Closing, for compensation and benefits, including, but not limited to, Liabilities and obligations under any Employee Benefit Plan (other than the liabilities expressly assumed by Buyer under Section 2.1), agreement, plan, contract, benefit arrangement or otherwise with respect thereto, including without limitation any unpaid salary, bonus, commission, severance, paid time off that is in excess of the Accrued Paid Time Off, or other amounts (collectively, the “Employee Payment Liabilities”);
(d) any and all Liabilities relating to Liability or obligation arising out of Excluded Assets, including Excluded Contracts;
(i) the sale of any and all Liabilities for product or service of the return by any customer of Seller of products sold or distributed by Seller Business on or prior to the Closing Date Date, including, without limitation, product warranties, product returns and rebates, and breach of warranty;
(e) any Liability (other than the Assumed Liabilities) relating to, based upon, or for a warranty claim for any product or service sold, distributed or performed, as arising out of the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller the Business or Seller’s employees the ownership or agents use of the Acquired Assets prior to the Closing Date;
(jf) any and all Taxes arising from Liability or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any periodobligation relating to, based upon, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) any and all Liabilities of Seller arising by reason Intellectual Property of any Third Party, including, without limitation, any infringement, misappropriation or violation or alleged violation of any Law or any requirement of any Governmental Body on or prior to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(rg) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement Liability or obligation related to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller Excluded Assets or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellera Non-Assignable Asset.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assumeNotwithstanding anything to the contrary contained in this Agreement, or be liable for, any liabilities which are not other than the Assumed Liabilities. All , Purchaser shall not be obligated to assume or to perform or discharge any Liability of Sellers (such liabilities which are Liabilities not Assumed Liabilities shall be referred to as assumed by Purchaser, the “Excluded Liabilities,” all ”), which Excluded Liabilities, for the avoidance of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknowndoubt, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but are not be limited to, each of those listed on Schedule 2.4 and the following Liabilitiesfollowing:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation Claims arising under Section 503(b)(9) of the transactions contemplated by this AgreementBankruptcy Code;
(b) any Claims or Liabilities arising on or before the Petition Date under the Perishable Agricultural Commodities Act, 7 U.S.C. §499a et seq., the Packers and all employee-related Liabilities of Seller accrued or arising out of actions▇▇▇▇▇▇▇▇▇▇ ▇▇▇, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices▇ ▇.▇.▇. §▇▇▇ et seq., or (vi) discrimination complaintstheir state law correlates;
(c) any costs or expenses incurred in connection with, or related to, this Agreement, the consummation of the Contemplated Transactions or the administration of the Chapter 11 Cases, including, without limitation, any accrued professional fees and all Liabilities expenses of Seller for attorneys, accountants, financial advisors and other professional advisors related to the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Chapter 11 Cases;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilitiesobligations under Sellers’ key employee retention plan;
(e) any and all Liabilities for the provision of notice or payment in lieu of notice and any applicable penalties under any intercompany loans, accounts the WARN Act arising prior to the Closing Date or Contracts between arising as a result of the Business, on the one hand, and Seller or any of its affiliates, on the other handContemplated Transactions;
(f) any and all Liabilities to any broker, finder, agent or similar intermediary for any broker’s fee, finder’s fee or similar fee or commission relating to litigation (i) involving the Business, the Purchased Assets Contemplated Transaction for which any Seller or Seller and existing as of the Closing Date, or (ii) its Affiliates are responsible including any transaction fee payable to the extent arising out Seller’s investment banker pursuant to Section 5.5 of or resulting from the Excluded Assets or Excluded Liabilitiesthis Agreement;
(g) any accrued and all Liabilities of unpaid personal property Taxes or payroll Taxes or other Taxes owed by any Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or other than those Taxes specified in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;Sections 2.3(i) and (j); and
(h) any and all Liabilities relating to Liabilities, or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold corrective or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or remedial obligations with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller which arises under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 any Environmental Laws (or parts or components thereof) sold, distributed or otherwise disposed of or services performed by or on behalf of the Seller, in each case, on or prior including without limitation any relating to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect exposure to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(qHazardous Materials) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions other than those specified in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerSection 2.3(f).
Appears in 1 contract
Excluded Liabilities. Purchaser will Notwithstanding anything herein to the contrary, the Buyers shall not assume, or shall not be deemed by anything contained in this Agreement to have assumed, and shall not be liable for, in any liabilities which are not Assumed manner for any Excluded Liabilities. All such liabilities which are Without limiting the generality of the foregoing, the Buyers shall not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become dueassume, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesdeemed by anything contained in this Agreement to have assumed:
(ai) any and all Liabilities of and/or on behalf the Sellers or their Affiliates pursuant to this Agreement or in the Transaction Documents;
(ii) any Liabilities arising out of Seller for or relating to the fees, costs and expenses incurred of the Sellers or their Affiliates incurred, or for which the Sellers or their Affiliates will be liable, in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this AgreementAgreement and the other Transaction Documents, including all professional, accounting and consulting fees (collectively, “Transaction Expenses”);
(iii) any Liabilities for any Indebtedness incurred by the Sellers or their Affiliates as of or prior to the Closing Date, including any late charges or prepayment penalties or charges relating thereto or Taxes resulting from cancellation thereof, or in connection with the transactions contemplated hereby or by the Transaction Documents (other than any Taxes that are the responsibility of the Buyers pursuant to Section 2.07 hereof), including attorneys’, accountants’ and consultants’ fees, finders’ fees, costs and expenses, regardless of when incurred;
(iv) any Liabilities arising out of or relating to any of the Excluded Subsidiaries or Branch Offices;
(v) except for amounts due to Ancile for work completed by Ancile under the Company’s or RWD Canada’s Contracts with SAP America, Inc. and SAP Canada Inc., any Liabilities arising out of or relating to teaming arrangements, fees or secondment obligations with Ancile;
(vi) any Liabilities (other than obligations to be performed after Closing under Assumed Contracts (but not including obligations in respect of any period prior to Closing or in respect of goods sold or services provided or to have been provided prior to Closing)) arising out of or under the instruments, documents and agreements executed in connection with the Ancile Transaction, including but not limited to offer letters issued in connection with the Ancile Transaction;
(vii) any Liabilities arising out of or relating to (a) any Tax of any Seller, including any Liability for any of such Taxes resulting from the transactions contemplated hereby or by the Transaction Documents (other than any Taxes that are the responsibility of the Buyers pursuant to Section 2.07 hereof) and (b) any and all employeeTax of any Person (other than the Sellers) to the extent imposed on a Seller solely as a result of (A) the Seller being included in a combined, consolidated or unitary Tax group under Treasury Regulation Section 1.1502-related 6 (or any similar provision of any applicable Law), (B) transferee liability, (C) successor liability, or (D) a contractual obligation;
(viii) any Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior relating to any Liability or on the Closing Date, including, without limitation: demand (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(dasserted) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before threatened or after the Closing Date, which may be asserted against Purchaser pending Orders or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, or (ii) Proceedings to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, period ending on or prior to the Closing Date, and income and similar Taxesincluding, of a type not described in Section 7.11without limitation, that are imposed as a result all Liabilities relating to or arising out of the sale of the Purchased Assets pursuant to this Agreement (exceptProceedings set forth on Schedule 5.08(e), in any case, as otherwise provided in this AgreementSchedule 5.15 and Schedule 5.18(b);
(kix) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract or Permit arising out of a breach or alleged breach thereof by Seller relating to any work, Contract, joint venture or other undertaking of the Sellers for any period ending on or prior to the Closing Date, including any warranty claims relating thereto;
(mx) any and all Liabilities arising out of or relating to any breach or violation or non-compliance with the Environmental Laws by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xi) any Liabilities arising out of or relating to any breach or violation or non-compliance with the Fair Labor Standards Act of 1938, as amended, or other applicable employment standards legislation, by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xii) any Liabilities arising out of or relating to any breach or violation or non-compliance with the TUPE Regulations by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xiii) any Liabilities (other than Taxes as contemplated in Section 2.07) arising out of or relating to any bulk transfer, bulk sales or similar Laws;
(xiv) any Liabilities arising out of or relating to any breach or violation of or noncompliance with any other Law by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xv) any Liabilities of Seller the Sellers to the direct or indirect equity holders of the Sellers or their other respective Affiliates;
(xvi) any Liabilities arising by reason out of or relating to the Excluded Assets;
(xvii) any violation Liabilities arising out of or alleged violation relating to any non-Business operations of any Law the Sellers or any requirement former operation of any Governmental Body on the Business that has been discontinued or disposed of at or prior to the Closing DateClosing;
(nxviii) any and subject to applicable UK law, including (for the avoidance of doubt) the TUPE Regulations, any Liabilities for the return by attributable to any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agentsBusiness Personnel who are not Transferred Personnel;
(oxix) except for payroll expenses accrued on the Closing Balance Sheet and unused, accrued paid time off balances for Transferred Employees, any Liabilities arising prior to or upon Closing with respect to the employment, engagement, termination of employment or engagement, compensation, severance, retention or employer benefits of any nature owed to any employees or consultants of any Seller (whether or not employed or engaged by any Buyer after Closing) that arise out of or relate to the employment or contracting arrangement (or termination of such relationship) between the Sellers and such individuals, including any obligations with respect to compensatory time off, wages, overtime and royalties (but excluding accrued commissions owed to Transferred Employees) owed to employees and consultants or under any Law covering equal employment opportunity, occupational health and safety, workers’ compensation or discrimination;
(xx) any Liabilities prior to or upon Closing arising out of or relating to any Employee Benefit Plan or Foreign Plan or any successor liability under ERISA or otherwise in connection with Liabilities arising prior to or upon Closing under any Employee Benefit Plan, including, without limitation, any deferred compensation or profit sharing plan and all any employer contributions thereto, but excluding items excepted under Section 2.03(b)(xix) above;
(xxi) except to the extent previously paid to the Buyers in cash or through an adjustment to the Purchase Price, any Liabilities arising out of or relating to the termination of any Employee Benefit Plan or Foreign Plan;
(xxii) any Liabilities under any Contract that is not an Assumed Contract;
(xxiii) except as set forth in Section 2.03(a)(i) or Section 2.03(a)(iii), any Liabilities of the Seller RWD Canada or arising out of the injury to or death business 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 the Seller, in each case, on or prior to the Closing DateRWD Canada;
(pxxiv) except as set forth in Section 2.03(a)(iv), any Liabilities of RWD UK or arising out of the business of RWD UK; and
(xxv) any and all other Liabilities arising out of Seller for severance pay or relating to the operation of the Business or the like with respect to any employee ownership of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period Acquired Assets prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding including any provisions in this Agreement obligations with respect to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming services or goods rendered to any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerprior to Closing.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assumeNotwithstanding anything to the contrary in this Agreement, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall not include and Buyer shall not assume or be obligated to pay, perform or otherwise discharge or in any way be liable for any Liabilities of any Asset Seller that does not constitute an Assumed Liability whether or not related to the Business or the Assets (all such Liabilities not assumed by Buyer being referred to herein as “Excluded Liabilities,” all the "EXCLUDED LIABILITIES"). Without limiting the generality of which Seller the foregoing, the following Liabilities of the Asset Sellers shall retain and remain liable for (whether such be considered to be Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilitiesfor all purposes under this Agreement:
(ai) any and all Liabilities of and/or on behalf of Liability with respect to Taxes for which Seller or any Selling Entity is liable under SECTION 8.2;
(ii) any Liability for costs and expenses incurred (other than as set forth in SECTION 8.5) in connection with the negotiation and execution of this Agreement or any other agreement or document delivered in connection herewith or the negotiation and consummation of the transactions contemplated by this Agreementhereby or thereby;
(biii) any and all employee-related Liabilities Liability of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer Selling Entity under this Agreement or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts other agreement between the BusinessSeller and its Affiliates, on the one hand, and Buyer and its Affiliates, on the other hand, entered into on or after the date of this Agreement in accordance with the terms hereof;
(iv) any intercompany accounts (including payables) among Seller and its Affiliates relating to the Business, which accounts shall be settled pursuant to SECTION 7.6;
(v) Subject to SECTION 7.14, any Liabilities for Debt of the Asset Sellers owed to Third Parties or Seller or any of its affiliates, on Affiliates (other than the other handPurchased Entities);
(fvi) any and all Liabilities relating to, resulting from or arising out of Nutriceutical Products sold or manufactured by the Asset Sellers prior to the Closing Date;
(vii) any Liabilities relating to litigation Transferred Employees or any other employees of Seller or any Affiliate thereof which are retained by Seller pursuant to SECTION 8.3 or any other provision of this Agreement and all other Liabilities for employee benefits and compensation that remain the responsibility of Seller or its Affiliates pursuant to SECTION 8.3;
(iviii) involving the Businessany Liability relating to, the Purchased Assets resulting from or Seller and existing as arising out of the Closing DateExcluded Assets and any other assets not transferred to and not purchased by Buyer;
(ix) any Liability relating to, resulting from or (ii) arising out of any Action to the extent relating to, resulting from or arising out of conduct of the Asset Sellers or the Business or relating to or resulting from incidents, events, facts or circumstances existing or occurring on or prior to the Closing Date (other than Liabilities relating to, arising out of or resulting from Actions or conduct of the Excluded Assets Asset Sellers or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law the Business or any requirement of any Governmental Body, including all Liabilities arising from, related relating to or in connection with FCC enforcement actionsresulting from incidents, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring that is the subject matter of CLAUSE (IV), (VIII), (X) or existing (XV) of SECTION 2.4(A));
(x) any Liability relating to, resulting from or arising out of any Divested Business or any products sold or manufactured by the Asset Sellers that are discontinued prior to the Closing Date;
(xi) any Liability related to any Environmental Claim to the extent that the underlying event or circumstance that is the basis for the Environmental Claim arose or occurred on or prior to the Closing Date;
(hxii) any and all Liabilities relating to to, resulting from or arising out of Excluded Assetsany violation of Requirements of Law occurring, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller relating to or resulting from incidents, events, facts or circumstances existing or occurring, on or prior to the Closing Date (other than Liabilities relating to, arising out of or for a warranty claim for resulting from Actions, violations or conduct or relating to or resulting from incidents, events, facts or circumstances that is the subject matter of CLAUSE (IV), (VIII), (X) or (XV) of SECTION 2.4(A) and other than Tax Liabilities);
(xiii) any product Liabilities relating to, resulting from or service sold, distributed arising out of claims of infringement or performed, as other misappropriation of the case may be, by Seller on or prior Intellectual Property rights of Third Parties with respect to the Closing Date based on any express warranty design, testing, manufacturing, marketing, use, sale lease or implied warranty arising due to the statements or conduct importation of Seller or Seller’s employees or agents products prior to the Closing Date;
(jxiv) any and all Taxes arising from other Liabilities under Contracts that are not assigned or with respect transferred to Buyer, except to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise extent provided in this Agreement)SECTION 2.3;
(kxv) any Liabilities of the Seller Liability for Indebtedness;
(l) any and all Liabilities of Seller under any Contractpunitive damages relating to, other than the Purchased Contracts, and any and all Liabilities of Seller under any Contract resulting from or Permit arising out of a breach the conduct of the Asset Sellers or alleged breach thereof by Seller the Business on or prior to the Closing Date;
(mxvi) any and all Liabilities of Liability for which Seller arising by reason of any violation or alleged violation of any Law or any requirement of any Governmental Body on or prior is liable pursuant to the Closing Date;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided hereinSECTION 8.13; and
(rxvii) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement Internal Restructuring Liability (other than any Tax Liability, which is subject to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.SECTION 8.2
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Tupperware Corp)
Excluded Liabilities. Purchaser will not assumeWithout limiting the generality of the first sentence of Section 2.3 and except to the extent otherwise provided in the second sentence of Section 2.3, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities the Operating Companies shall be referred to as solely responsible and liable for (the “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:”):
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection liability or obligation with this Agreement respect to current, former or the negotiation and consummation retired employees of the transactions contemplated Operating Companies (including any liability for unpaid bonuses, severance payments, vacation time, paid time off or other amounts payable to employees) or consultants or other service providers of the Operating Companies arising out of or relating to the employment of, or services performed by this Agreementsuch employees or consultants or other service providers by the Operating Companies prior to the Closing, other than (i) liabilities identified in Sections 2.3(b) and 2.3(c) above, and (ii) liabilities to current employees for unpaid bonuses, vacation time, paid time off or other amounts payable to employees to the extent such is liability is included in the calculation of Net Operating Working Capital;
(b) any all liabilities and obligations for Taxes, fees and other similar items however designated, and all employee-related Liabilities of Seller accrued or arising out of actionsinterest, omissions or events occurring prior penalties and additions to or on the Closing Datetax, including, without limitation: (i) but not limited to, franchise and income taxes and all accrued salaries property, sales, use and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practicestaxes incurred or arising on or prior to the Closing, or (vi) discrimination complaintsincurred or accrued after the Closing in connection with or relating to activities of the Operating Companies or the Business prior to the Closing;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Indebtedness;
(d) all liabilities and obligations arising out of or relating to the provision of any and services by the Operating Companies or the business of the Operating Companies on or prior to the Closing;
(e) all Liabilities owed tolitigation, whether currently pending or not, relating to the business of the Operating Companies prior to the Closing, or claims ofarising on or after the Closing to the extent that such litigation relates to activities of the Operating Companies or the business of the Operating Companies on or prior to the Closing;
(f) all liabilities and obligations under Contracts (or amendments thereto) that are not specifically assumed by Buyer under Section 2.3(a);
(g) all liabilities and obligations arising out of any failure by any Operating Company to perform any obligation required to be performed by it or out of any default by any Operating Company (or out of any event, Seller’s creditorsfact or circumstance that, with notice or lapse of time or both, would constitute a default by any Operating Company) on or before the Closing under any of the Assumed Contracts (regardless of whether the assignment of any Assumed Contract contains anything to the contrary or is silent on such issue), or out of the failure of any Operating Company or the business of the Operating Companies to comply with any law, regulation, ordinance, order, writ, judgment, injunction, decree or other requirement of any Governmental Entity prior to the Closing Date, except as otherwise set forth herein;
(h) all liabilities and obligations to any Affiliate of the Operating Companies or any owner or holder of any interest in any Operating Company, other than liabilities arising before or under the Leases on and after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of eventsliabilities accrue after the Closing, facts or circumstances occurring or existing are not required to be performed on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising are disclosed in the text of such Lease and do not arise out of Excluded Assets, including Excluded Contractsor relate to a default of the applicable Lease prior to the Closing;
(i) except to the extent otherwise provided in Section 7.13 hereof, all liabilities and obligations of any Operating Company or the Business and all Liabilities for the return any ERISA Affiliate with respect to any Employee Benefit Plan established, maintained, sponsored or contributed to by any customer of Seller of products sold Operating Company or distributed by Seller on the Business or prior to any ERISA Affiliate, including, without limitation, liabilities under the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing DatePlans;
(j) any all liabilities and all Taxes obligations arising from out of or with respect relating to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);Excluded Assets; and
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities liabilities and obligations of Sellerany Operating Company or the Business that Buyer is not specifically assuming under Section 2.3.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assume, or be liable for, Notwithstanding any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) any and all Liabilities of Seller for the other provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability liability or obligation of Seller of whatever nature, whether presently in existence or arising hereafter (all such liabilities and obligations not being assumed being herein referred to collectively as 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:
(a) Any Debt of Seller;
(b) Any liability or obligation for Taxes of Seller for any Pre-Closing Tax Period (including all liabilities of Seller for Taxes related to the transactions contemplated by this Agreement);
(c) Any liability or obligation arising out of or relating to an Excluded Asset or relating to a Plan, including, without limitation, any cost, liability or obligation arising from, or relating to, those failures related to Seller's qualified Plans set forth on item 3 of SCHEDULE 3.11;
(d) The obligations, liabilities and expenses (including for any accounting, legal, investment banking, brokerage or similar fees or expenses) incurred by Seller 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;
(e) The obligations or liabilities relating to (i) employees or former employees of Seller, including Business Employees, for periods prior to the Closing Date, except as specifically assumed by Purchaser pursuant to Section 5.19, and (ii) Non-Hired Employees whether arising before, on, or after the Closing Date, including for purposes of both clauses (i) and (ii) above any obligations or liabilities arising under or with respect to any Plans, except as specifically assumed by Purchaser pursuant to Section 5.19;
(f) The obligations or liabilities for (x) any judgment in favor of the opposing party in, or settlement of, any litigation relating to any matter arising out of or relating to any time on or prior to the Closing Date, including, without limitation, the litigation and other matters listed on SCHEDULE 3.5, (y) any Environmental Claims and (z) all costs and expenses (including reasonable attorney's fees and expenses) incurred in connection with any of the foregoing;
(g) Any obligations or liabilities (x) relating to or arising out of the investigation by the United States Attorney for the Middle District of North Carolina and the Department of Justice regarding travel expense rates, overhead, taxes and time records of Seller and Persons affiliated with Seller in submitting bids on certain Government Contracts (the "INVESTIGATION") and (y) for costs and expenses (including reasonable attorney's fees and expenses) incurred in connection with the Investigation;
(h) Any obligations or liabilities (x) relating to or arising out of (i) any Defense Contract Audit Agency ("DCAA") audit or investigation commenced following the Closing Date relating to any event or matter arising out of or relating to Seller or its Subsidiaries Affiliates or to the Business any time on or prior to Closing Date, (ii) the draft audit report issued by the DCAA in March 2001 regarding Modification 004 under Contract No. N61339-96-C-0051 (the "DCAA MOD. 4, -0051 CONTRACT AUDIT") and (iii) the DCAA post-award audit (written notice of which was received by Seller on July 17, 2001) regarding Modification 031 under Contract No. N61339-97-C-0070 (the "DCAA MOD. 31, -0070 CONTRACT AUDIT") and (y) for costs and expenses (including reasonable attorney's fees and expenses) incurred in connection with the foregoing;
(i) Any obligations or liabilities of Seller pursuant to Environmental Laws or principles of common law relating to pollution, protection of the environment or health and safety arising out of or based upon events, conditions or circumstances occurring or existing as of or prior to the Closing Date;
(j) The obligations, liabilities or expenses relating to claims (arising out of or based upon any event or matter existing as of or prior to the Closing Date) of third parties against Seller or Purchaser alleging infringement or violation of any IP License, Licensed IP or any predecessor owner Intellectual Property rights relating to the Business or the Acquired Assets;
(k) All other liabilities, obligations and expenses of all any nature of Seller whatsoever, known or part unknown, whether absolute, contingent or otherwise, not expressly assumed by Purchaser pursuant to Section 2.3; and
(l) Any liabilities which arise as a result of the Business) a breach of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations any of Seller's representations, warranties, covenants or agreements hereunder.
Appears in 1 contract
Excluded Liabilities. Notwithstanding any other provision of this Agreement (or any agreement or instrument contemplated hereby) to the contrary, Purchaser (and its designated Affiliates, as applicable) is assuming only the Assumed Liabilities and is not assuming the Excluded Liabilities or any other Liability, Legal Proceeding against or obligation of Seller or the Subsidiaries or any other Person of whatever nature, whether presently in existence or arising hereafter, and Purchaser (and its Affiliates) will not assumeassume and will not be responsible to pay, perform or discharge any Liabilities of Seller, any of the Subsidiaries, or the Business or relating to the Purchased Assets of any kind or nature whatsoever (including the Excluded Liabilities) other than the Assumed Liabilities. Purchaser (and its Affiliates) will not assume or be liable for, for any liabilities which are not Assumed Excluded Liabilities. All such liabilities which are not Assumed Liabilities Seller shall, and shall be referred to as cause the Subsidiaries to, timely perform, satisfy and discharge in accordance with their respective terms all Excluded Liabilities. “Excluded Liabilities,” shall mean all Liabilities of which Seller shall retain and remain liable for (whether such Excluded the Subsidiaries arising out of, relating to or otherwise in respect of the Business or the Purchased Assets on or before the Closing Date and all other Liabilities are known or unknownof Seller and the Subsidiaries other than the Assumed Liabilities, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of including the following Liabilities:
: (a) any and all Liabilities in respect of any products sold and/or on behalf of services performed by Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued Subsidiaries on or arising out of actions, omissions or events occurring prior to or on before the Closing Date, includingother than Liabilities expressly included in Section 2.3(a); (b) all Current Liabilities, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
except to the extent specifically set forth in Section 2.3; (c) any all Environmental Costs 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 to employees of SellerLiabilities, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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 otherwise related to the Excluded Assets ownership or Excluded Liabilities;
operation by Seller or the Subsidiaries of the Real Property Lease (g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(hcondition thereon) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the SellerBusiness, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (DZS Inc.)
Excluded Liabilities. Purchaser will not assumeNotwithstanding anything to the contrary contained in this Agreement or in any Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any Transaction Documents or on any Schedule or Exhibit hereto or thereto, the Company shall only be liable forresponsible for the following liabilities and obligations: (a) those which arose prior to the Closing Date and represent normal and current trade payables incurred by the Company in connection with the operation of the Business in the ordinary course of business, any liabilities consistent with past custom and practice (and which are not Assumed Liabilities. All such delinquent), and are specifically set forth on Schedule 1.4(a) (“Accounts Payable”); (b) the other accrued liabilities of the Company which have been incurred in the ordinary course of business, consistent with past custom and practice and which are not Assumed Liabilities shall be referred to specifically set forth on Schedule 1.4(b) (“Accrued Liabilities”); (c) the Company’s external (non delinquent) bank debt and underlying Liens in the amount of One Million Eight Hundred Twenty-Seven Thousand Three Hundred Four Dollars ($1,837,304) as of April 30, 2007, provided that such debt is consistent with the amount set forth above (the “Excluded Liabilities,” all of which Seller shall retain Bank Debt”); and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or d) those first arising after the ClosingClosing Date under any Assumed Contract (except for any liability or obligation arising from any breach or failure to perform under any of the foregoing prior to the Closing Date) (collectively, the “Permitted Liabilities”). Excluded Liabilities From and after the Closing Date and except for the Permitted Liabilities, the Company shall includehave no responsibility or liability for any other debts, but not be limited liabilities or obligations of the Business, the Company, the Members or any of their respective Affiliates of any kind or nature whatsoever, arising out of, relating to, each resulting from, or caused by any transaction, status, event, condition, occurrence or situation relating to, arising out of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred or in connection with this Agreement the Business, the Assets, the Company or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued Members existing, arising or arising out of actions, omissions occurring on or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, any liabilities or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities obligations 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 (the “Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement”);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Purchase Agreement (Novamed Inc)
Excluded Liabilities. Purchaser will Notwithstanding anything in this Agreement to the contrary, as at the Closing Time, the Service Provider shall not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities and shall be referred deemed not to as have assumed, the following Liabilities (collectively, the “Excluded Liabilities,” ”):
(a) all Liabilities relating to the Purchased Assets other than the Employee Holdco Shares, including under the Real Property Leases, the CN Licence, the Parking Licence, the Kent Street Parking Licence, the Fallsview Retail Subleases and the Contracts, arising from or relating to events or matters occurring prior to the Closing Time except to the extent that the Service Provider receives a credit for such Liabilities in accordance with Section 4.3(f) (including Liabilities for Taxes relating to the Purchased Assets arising prior to the Closing Time not otherwise adjusted for on the Closing Date and except those which are the express responsibility of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or the Service Provider pursuant to become duethis Agreement), and including any Liabilities to the extent arising from or relating to events, matters or items disclosed in the Environmental Reports or the Building Condition Reports, regardless of whether claims with respect thereto are asserted the Liabilities relating to such events, matters or items occur or arise before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this AgreementClosing Time;
(b) all Liabilities in respect of any and all employee-related Liabilities of Seller accrued Claim against OLG or the Existing Operator relating to the Subject Gaming Sites or the Purchased Assets arising out of actions, omissions on or events occurring before or relating to the period prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsTime;
(c) any and all Liabilities of Seller for amounts that are due and payable for goods delivered and services rendered to the provision of health plan continuation coverage Subject Gaming Sites prior to the Closing which have not been paid as at the Closing Time, except to the extent that the Service Provider receives a credit for such Liabilities in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.14.3(f);
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant relating to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed LiabilitiesLocal Progressive Jackpots;
(e) any all costs and all Liabilities under any intercompany loans, accounts expenses incurred by OLG or Contracts between the Business, Existing Operator relating to maintenance of the IT Hardware arising from or relating to events or matters occurring prior to the Closing Time and not paid by or otherwise adjusted for on the one hand, and Seller or any of its affiliates, on the other handClosing Date;
(f) any and all Liabilities amounts payable by OLG to the Existing Operator relating to litigation (i) involving the Business, the Purchased Assets or Seller and existing as operation of the Closing Date, or (ii) Subject Gaming Sites by the Existing Operator during the period prior to the extent arising out of or resulting from the Excluded Assets or Excluded LiabilitiesClosing Time;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, relating to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing DateWin Tax;
(h) any and all Liabilities recorded as provisions on the financial statements in respect of the Complex as at the Closing Date; and
(i) except as otherwise specifically provided herein, all Liabilities relating to or arising out of the Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract
Sources: Transition and Asset Purchase Agreement (Mohegan Tribal Gaming Authority)
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2(c) or any other provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform, or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liability of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” ”). Seller shall remain solely liable and responsible for all of Excluded Liabilities and shall timely and fully pay and satisfy the same, whether arising, accrued, incurred, due, or payable prior to or after Closing; provided, however, that with respect to Accounts Payable, such amounts shall be paid and satisfied in accordance with Section 8. At Closing, Seller shall pay all Excluded Liabilities that relate to the Purchased Assets and for which Seller has received an invoice as of the Closing Date (“Known Excluded Liabilities”) and shall retain and remain liable for (whether provide evidence of such Excluded Liabilities are known or unknownpayment to Buyer. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but not be limited to, each of include the following Liabilitiesfollowing:
(ai) any and all Liabilities of and/or on behalf Liability of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation, and performance of this Agreement Agreement, the other Transaction Documents, and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, investment bankers, consultants, advisers, and others;
(ii) any Liability arising from any account payable, trade or otherwise, of Seller or any of their Affiliates (“Accounts Payable”), except to the extent of Buyer’s responsibility for prorations in accordance with Section 7(n);
(iii) except to the extent of Buyer’s responsibility for prorations in accordance with Section 7(n), any Liability for (i) Taxes of Seller; (ii) Taxes of any Affiliate of Seller; (iii) Taxes relating to the Business, the Purchased Assets, or the negotiation and Assumed Liabilities for any Pre-Closing Tax Period; (iv) Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Seller pursuant to Section 7(n); or (v) other Taxes of Seller (or any Affiliate of Seller) of any kind or description including any Liability for Taxes of Seller (or any Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or other transferee or successor liability theory or otherwise by this Agreementoperation of Law;
(biv) any and all employee-related Liabilities of Seller accrued Liability relating to or arising out of actionsthe Excluded Assets;
(v) any Liability in respect of any Action or threatened Action against or involving Seller arising out of, omissions relating to, or events occurring otherwise in respect of the Business or the Purchased Assets to the extent such Action first arose or accrued during, or is relates to, the period prior to or on the Closing Date, includingincluding compliance with and performance of the terms or conditions of any settlement of any Action or threatened Action (and, without limitation: (i) accrued salaries and wagesfor the avoidance of doubt, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges any voluntary compliance by Buyer with respect to the terms of unfair labor practices, settlement related to any such Action or threatened Action will not be deemed to be an assumption of any Liability of Seller s with respect thereto);
(vi) discrimination complaintsany Liability related to or arising out of obligations under any Contracts to acquire or sell real property or other assets, which Contracts have closed or been terminated prior to the Closing and which obligations survive the closing, expiration, or termination of such Contracts, including any Liability related to any surviving representations or warranties, indemnification obligations, or warranty obligations;
(cvii) any and all Liabilities of Seller Liability for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Sellerany warranty obligations, regardless of whether indemnification obligations, construction or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed todesign defect, or similar claims ofwith respect to any products manufactured or sold, Seller’s creditorsimprovements constructed or installed, whether arising before fixtures, equipment, or after appliances installed, or any service performed by Seller relating to or otherwise in respect of the operation of the Business prior to the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant including without limitation, warranty obligations related to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any and all Liabilities relating Housing Unit that was completed prior to litigation (i) involving the Business, the Purchased Assets or Seller and existing as of the Closing Date, but excluding the Incomplete Housing Unit Warranty Obligations (collectively, the “Pre-Closing Warranty Obligations”);
(viii) any Liability of Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller or any predecessor employer;
(iiix) any Liability of Seller for any present or former employees, officers, directors, retirees, independent contractors, or consultants of Seller, including any Liability associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination, employment agreements, or other payments, including any Liability incurred under the WARN Act;
(x) any Liability for any Environmental Claims or Liability under Environmental Laws to the extent arising out of or resulting from relating to facts, circumstances, or conditions existing prior to the Excluded Assets Closing or Excluded Liabilitiesotherwise to the extent arising out of any actions or omissions of Seller;
(gxi) any and all Liabilities Liability to indemnify, reimburse, or advance amounts to any present or former officer, director, employee, or agent of Seller arising or predecessor employer (including with respect to any breach of fiduciary obligations by reason of same);
(xii) any violation of Liability under any Law Excluded Contracts or any requirement of any Governmental Bodyother Contracts, including all Liabilities arising from, related (i) which is not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or in connection with FCC enforcement actions, in each case, (iii) to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or relates to a breach by Seller of such Contracts prior to the Closing DateClosing;
(hxiii) any and all Liabilities Liability relating to or arising out of Excluded any Indebtedness, loans, or Credit Facility of Seller or otherwise relating to any Purchased Assets, including Excluded Contracts;
(ixiv) any and all Liabilities for Liability arising out of, in respect of, or in connection with the return failure by Seller or any customer Affiliate of Seller of products sold to comply with any Law or distributed by Seller on or Governmental Order;
(xv) any claim from any prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct owner of Seller or Seller’s employees or agents prior to the Closing Datetheir predecessors;
(jxvi) any and all Taxes arising from or with respect Liability related to the Purchased Assets or the operation of the Business that are incurred in or attributable to any periodDesign Studio Lease, Office Lease, Sign Leases, Copier Lease, or any portion of any period, ending on or prior Postage Lease to the Closing Dateextent related to, 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or writtenduring, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for accruing during the period prior to the Closing, except as otherwise expressly provided herein; and
(rxvii) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement Liability arising out of or relating to any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, pay equity, independent contractor classification, exempt employee classification, or wage and hours (including minimum wage, meal and rest breaks, and overtime payments) related to, arising during, or accruing during the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerperiod prior to Closing under applicable Laws.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assume, or be liable for, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities (i) Seller shall be referred to as responsible for the payment of the following liabilities (the “Excluded Liabilities,” all of which Seller shall retain and remain liable for ”):
(whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after A) the Closing). Excluded Liabilities shall include, but not be limited to, each Companies’ bonuses accrued as of the following Liabilities:Closing Date under the Companies’ annual bonus plan calculated in the ordinary course of business consistent with past practice and in a manner consistent with the methodologies set forth on Schedule 2.2(c)(i)(A),
(aB) any and all Liabilities of and/or on behalf of Seller for costs and the Companies’ restructuring expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaints;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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 calculated in a manner consistent with the extent arising out calculation of or resulting from such amounts in the Excluded Assets or Excluded Liabilities;Financial Statements, and
(gC) any and all Liabilities the amount of Seller arising customer deposits by reason Sidley Austin held as of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each casethe Closing Date, to the extent such Liability results from or arises out that the services for which prepayment was made have yet to be performed, and
(D) any customer discounts accrued as of events, facts or circumstances occurring or existing on or prior to the Closing Date;, calculated in a manner consistent with the methodologies set forth on Schedule 2.2(c)(i)(D).
(hii) any Seller shall pay to Buyer (or its designee) the amounts of the Excluded Liabilities set forth in Sections 2.2(c)(i)(B) and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;(C) above within five Business Days after the Closing Date.
(iiii) any Buyer shall deliver to Seller a calculation of the amount of accrued bonuses calculated in accordance with Section 2.2(c)(i)(A) and all Liabilities for of the return by any amount of accrued customer of Seller of products sold or distributed by Seller discounts calculated in accordance with Section 2.2(c)(i)(D), together with reasonable detail supporting each such calculation, on or prior to before the 30th day after the Closing Date or for a warranty claim for any product or service sold(provided that such 30th day is not before November 30, distributed or performed2004). Seller shall have 15 days to review such calculations and raise objections if Seller believes that the amounts have not been calculated in accordance with Section 2.2(c)(i)(A) and Section 2.2(c)(i)(D), as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or respectively. Any disputes with respect to the Purchased Assets bonus or customer discount calculations shall be resolved in a manner consistent with the operation Neutral Auditor provisions set forth in Section 2.2(b)(iii). Seller shall pay to Buyer (or its designee) cash in the amounts of the Excluded Liabilities calculated as set forth in Sections 2.2(c)(i)(A) and (D) above within five Business that are incurred in or attributable to any periodDays after the end of such 15-day review period or, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the if Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like raises an objection within such period with respect to any employee one or both calculations, within five Business Days after the resolution of the Seller that does not accept employment resulting dispute over such amount in accordance with the Purchaser upon completion Neutral Auditor provisions.
(iv) Seller’s payment to Buyer (or its designee) of the transaction contemplated by amounts of Excluded Liabilities calculated in accordance with this Agreement;
(q) any Section 2.2 shall discharge Seller’s responsibility therefor, and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of thereafter the Seller Companies shall be solely responsible for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner payment of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerExcluded Liabilities.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer does not assume, agree to perform or be liable fordischarge, indemnify Seller against, or otherwise have any liabilities which are not responsibility for any Liabilities of Seller (other than the Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for () whether such Excluded Liabilities are fixed or contingent, known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before arising prior to, on or after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, the following Liabilities of Seller, (iithe "Excluded Liabilities"):
(a) any loss or Liability relating to current or former employees of the Aerospace Business (and their eligible dependents and beneficiaries) (including any Transferred Employees), including with respect to employment, which accrued vacation prior to the Closing Date, except to the extent that such Liability is reflected on the Closing Balance Sheet as a current liability of the Aerospace Business;
(b) all Liabilities related to Business Benefit Arrangements and sick payBusiness Benefit Plans or with respect to Retained Employees, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsexcept as specifically assumed by Buyer;
(c) 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 to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Indebtedness (other than Assumed Liabilities);
(d) any and all Liabilities owed to, or claims of, Seller’s creditorsother Liability, whether currently in existence or arising before or after the Closing Datehereafter, which may be asserted against Purchaser of Seller or any of the Purchased Assets pursuant its Affiliates or to which Seller or any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute of its Affiliates could become subject (other than Assumed Liabilities);
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and of Seller or its Affiliates with respect to Taxes for periods ending on or prior to the Closing Date (including any Liability for income Taxes of Seller or its affiliates, on Affiliates relating to consummation of the other handtransactions contemplated in this Agreement);
(f) any and all Liabilities relating to litigation (i) involving the Business, the Purchased Assets misuse or Seller and existing as misrepresentation of the Closing Date, Intellectual Property Rights or (ii) infringement of third party intellectual property rights relating to the extent arising out of any period or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances event occurring or existing on or prior to the Closing Date;
(hg) any and all Liabilities relating of Seller with respect to or fees, costs, broker's commissions and expenses arising out of Excluded Assetsor in connection with this Agreement or any Related Document, including Excluded Contractsor the transactions contemplated hereby or thereby;
(ih) any and all Liabilities for arising out of any claim, suit, proceeding, investigation, inquiry or similar matter currently pending or arising after the return by Closing Date, relating to the Aerospace Business or any customer of Seller of products sold or distributed by Seller on or Transferred Assets relating to any act, omission, breach, default, misrepresentation, warranty, condition or, subject to the Related Documents, any other event occurring prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or Seller's other businesses and operations whether arising prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to after the Closing Date;
(ji) any and all Taxes arising from or Liabilities of Seller with respect to the Purchased Assets compliance with laws relating to pollution or protection of human health or safety or the operation environment, and any other Liabilities under such laws (other than any such Liability resulting from Buyer's breach of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Transition Agreement);
(j) all Liabilities for product liability claims and product or service warranties other than the Assumed Warranties;
(k) any all Liabilities arising from the operation of the Seller Aerospace Business, or performance, nonperformance, breach, default or other violation of any Assumed Contract, prior to Closing, except for IndebtednessAssumed Liabilities;
(l) any and all Liabilities Liability of Seller arising under this Agreement or any Contract, other than the Purchased Contracts, and 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 DateRelated Document;
(m) 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 Dateunder Contracts that are not Assumed Contracts;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior Liability relating to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by items listed in Section 3.6 of the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;Disclosure Schedule; and
(o) any Liability of Seller relating to suspension and all Liabilities of debarment, defective pricing, mischarging, fraud, false claims, false certifications, export licenses, facility and personnel security clearance and the Seller arising out of the injury to or death of Foreign Corrupt Practices Act (other than (i) 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 such Liability arising from or related to products (or parts or components thereof) sold, distributed or otherwise disposed the conduct of or services performed by or on behalf of the Seller, in each case, on or prior to Buyer after the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like Date with respect to the Aerospace Business or the Transferred Assets and (ii) any employee such Liability relating exclusively to any act, omission, breach, default or misrepresentation of Buyer or Buyer's breach of the Seller Transition Agreement). To the extent, if any, that does not accept employment with any Liability might be partly an Assumed Liability and partly an Excluded Liability, the Purchaser upon completion apportionment of such Liability shall be determined pursuant to equitable principles. Nothing set forth in the transaction contemplated by this Agreement;
(q) any and all Liabilities foregoing sentence shall be deemed to affect, amend, modify, supplement or otherwise change the definitions of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerExcluded Liabilities.
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer shall not assume, assume or be liable forobligated to pay, perform or otherwise discharge after the Closing, any liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all liability or obligation of which Seller shall retain and remain liable for (whether such Excluded Liabilities are Sellers, direct or indirect, known or unknown, absolute, contingent, liquidated absolute or unliquidated, due or contingent unless expressly assumed by Buyer pursuant to become due, this Agreement (all such liabilities and whether claims with respect thereto are asserted before or after obligations not being assumed being herein called the Closing“Excluded Liabilities”). Unless expressly agreed otherwise in this Agreement, including pursuant to Section 2.3 the following shall be Excluded Liabilities shall include, but not be limited to, each for purposes of the following Liabilitiesthis Agreement:
(a) any liabilities arising from activities of Sellers prior to Closing, other than with respect to work in progress acquired by Buyer hereunder, including any liabilities and all Liabilities obligations related to or arising from (i) the occupancy, operation, use or control of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation any of the transactions contemplated Seller Property prior to the Closing Date or (ii) the operation of the Business prior to the Closing Date, in each case incurred or imposed by this Agreementany Environmental Law, including liabilities and obligations related to, or arising from, (1) any Release of any Contaminant on, at or from the Seller Property, including all facilities, improvements, structures and equipment thereon, surface water or sediments thereon or adjacent thereto and soil or groundwater thereunder, or any conditions whatsoever on, under or in the vicinity of such real property or (2) the off-site disposal of any Contaminant that would create liability for Sellers as a generator, arranger, or transporter under any applicable Environmental Law;
(b) any and all employee-obligations related Liabilities of Seller accrued or arising out of actions, omissions or events to home closings occurring prior to or on Closing, except as specifically provided by the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges terms of unfair labor practices, or (vi) discrimination complaintsthe Warranty Administration Agreement;
(c) any and all Liabilities liabilities in respect of Seller Taxes for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser which Sellers are liable pursuant to Section 8.18.3;
(d) any payables and all Liabilities owed to, other liabilities or claims of, Seller’s creditors, whether arising before or after obligations of the Closing Date, which may be asserted against Purchaser Companies to TEP or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilitiesits Affiliates;
(e) any costs and all Liabilities under any intercompany loans, accounts or Contracts between expenses incurred by Sellers incident to the Business, on negotiation and preparation of this Agreement and the one hand, pre-closing performance and Seller or any of its affiliates, on compliance by Sellers with the other handagreements and conditions contained herein;
(f) any and all Liabilities relating to litigation (i) involving liabilities under RESPA arising from the Business, the Purchased Assets or Seller and existing as operation of the Closing Date, or (ii) to the extent arising out of or resulting from the Excluded Assets or Excluded Liabilities;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or Business prior to the Closing Date;
(g) any liabilities in respect of any Proceedings, including, without limitation, any Proceeding listed on Schedule 5.19;
(h) accrued liabilities of any and all Liabilities relating kind required to or arising out of Excluded Assets, including Excluded Contractsbe reflected on the Closing Date Balance Sheet prepared in accordance with the Agreed Accounting Principles which were not reflected thereon as a dollar amount;
(i) any and all Liabilities for obligations to employees of Sellers (including, without limitation, under the return by Seller Plans, any customer change of Seller of products sold control, severance or distributed by Seller on or other payments), arising prior to Closing or as a result of the transactions contemplated by this Agreement or any obligations under any Seller Plan, other than those expressly assumed by Buyer under Section 8.4;
(j) any liability for any fraud, bribery, kickback or similar malfeasance;
(k) any liability under any contract or any other instrument or agreement assumed by Buyer pursuant to Section 2.3 that arises after the Closing Date but that arises out of or for a warranty claim for relates to any product breach or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents default that occurred prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and liability to any stockholder, member or partner of any Seller or Affiliate of any Seller, including any liability of any Seller to distribute to any such parties or otherwise apply all Liabilities or any part of Seller under any Contract, other than the Purchased Contracts, and 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 Dateconsideration received hereunder;
(m) any and all Liabilities liability to indemnify, reimburse or advance amounts to any manager, employee or agent of Seller arising by reason of any violation or alleged violation of any Law Sellers or any requirement of any Governmental Body on or prior to the Closing DateAffiliate;
(n) any and any Liabilities for liability based upon Sellers’ or their Affiliates’ acts or omissions occurring after the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agentsClosing;
(o) any and all Liabilities of the Seller arising out of the injury to or death obligation of any person Seller to provide a discount off the listing price to any employee or animal or damage to or destruction any Affiliate of any tangible property, whether based on negligence, breach of warranty, strict liability, enterprise liability or Seller with respect to 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 the Seller, in each case, on or prior to the Closing Datehome purchases;
(p) any and all Liabilities liability for deferred payments to Ohio Savings Bank by Sellers for the repurchase of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreementwarrants;
(q) any liability to Colonial Crossing Associates, LLC by Sellers for any lot deferred purchase price equal to water and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior sewer impact fees which would have been payable to the Closing, except as otherwise expressly provided herein; andCity of Fort M▇▇▇▇;
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement liability to North Cape Holdings, LLC by Sellers for the contrary, Purchaser is assuming only sale of surplus fill from Coral Lakes; and (s) the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Sellerliabilities identified on Schedule 2.4.
Appears in 1 contract
Sources: Asset Purchase Agreement (Technical Olympic Usa Inc)
Excluded Liabilities. Purchaser will Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assumeassume and shall not be responsible to pay, perform or be liable for, discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities shall be referred to as (the “Excluded Liabilities,” all of which ”). Seller shall retain (and remain liable for (whether such the Stockholder shall cause Seller to), cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are known or unknownobligated to pay and satisfy. Without limiting the generality of the foregoing, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or after the Closing). Excluded Liabilities shall include, but shall not be limited to, each of the following LiabilitiesLiabilities of Seller or any Stockholder or any Affiliate:
(a) any and all Liabilities of and/or on behalf of Seller for costs and expenses arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including the fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of or relating to the Business for any period or the negotiation and Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated by this Agreement;
(b) any and all employee-related Liabilities Agreement or that are the responsibility of Seller accrued pursuant to Section 6.14; or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, other Taxes of any kind or description (iv) withholdings, (v) charges including any Liability for Taxes that becomes a Liability of unfair labor practices, Buyer under any common law doctrine of de facto merger or (vi) discrimination complaintstransferee or successor liability or otherwise by operation of contract or Law);
(c) any and all Liabilities relating to or arising out of Seller for the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1Excluded Assets;
(d) any and all Liabilities owed to, in respect of any pending or claims threatened Action arising out of, Seller’s creditors, whether arising before relating to or after otherwise in respect of the Closing Date, which may be asserted against Purchaser operation of the Business or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller;
(g) any Liabilities arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(h) any and all Liabilities relating to for any present or arising out former employees, officers, directors, retirees, independent contractors or consultants of Excluded AssetsSeller, including Excluded Contractsany Liabilities associated with any claims for wages or other benefits, commissions, bonuses, expense reimbursement, paid sick leave, accrued vacation or other paid time off, workers’ compensation, severance, retention, termination or other payments;
(i) any and all Environmental Claims, or Liabilities for under Environmental Laws, to the return by any customer extent arising out of Seller of products sold or distributed by Seller relating to facts, circumstances or conditions existing on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior otherwise to the Closing Date based on extent arising out of any express warranty actions or implied warranty arising due to the statements or conduct omissions of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect trade accounts payable (i) to the Purchased Assets extent not accounted for on the Interim Balance Sheet; (ii) which constitute intercompany payables owing to Affiliates of Seller; (iii) which constitute debt, loans or credit facilities to financial institutions; or (iv) which did not arise in the operation ordinary course of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement)Business;
(k) any Liabilities relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by Sellers’ customers to Seller for Indebtednesson or before the Closing Date; (ii) did not arise in the ordinary course of the Business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(l) any and all Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Seller under any Contract, other than the Purchased Contracts, and 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 DateIndemnitees;
(m) any Liabilities under any other Contract, including Intellectual Property Agreements, (i) which are not validly and all effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by Seller arising by reason of any violation or alleged violation of any Law or any requirement of any Governmental Body on or such Contracts prior to the Closing Date;
(n) any and any Liabilities for the return by any customer associated with debt, loans or credit facilities of Seller of products sold or distributed by Seller on or prior and/or the Business owing to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;financial institutions; and
(o) any and all Liabilities of the Seller arising out of, in respect of or in connection with 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 failure by Seller or any other legal of its Affiliates to comply with any Law 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerGovernmental Order.
Appears in 1 contract
Excluded Liabilities. Purchaser will not assumeNotwithstanding anything else contained herein to the contrary, or be liable for, any all liabilities which are not Assumed Liabilities. All such liabilities which are not Assumed Liabilities shall be referred to as “Excluded Liabilities,” all and obligations of which Seller shall retain and remain liable for Sellers (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due contingent or to become duefixed) other than the Assumed Liabilities (the “Excluded Liabilities”), shall remain the liabilities and obligations of Sellers, and shall not be assumed by Purchaser pursuant hereto (regardless of whether claims with respect thereto any such liabilities or obligations are asserted before or after the Closingdisclosed in this Agreement). Each Seller hereby agrees that it shall fully and timely pay, perform and discharge all of the Excluded Liabilities shall include, but not be limited to, each in accordance with their respective terms. Without limiting the generality of the following Liabilitiesforegoing, Excluded Liabilities of Sellers include the following:
(a) any liability or obligation of any Seller arising under any Assumed Contract, Lease, License or other agreement as a result of any act or omission occurring prior to the Closing Date;
(b) any liability or obligation related to the Excluded Assets;
(c) any liability or obligation for any Taxes owed by any Seller or arising in connection with the consummation of this Agreement and all Liabilities the transactions contemplated hereby, unless otherwise provided in this Agreement;
(d) any liability or obligation of and/or on behalf of Seller Sellers for costs and expenses incurred in connection with this Agreement or the negotiation and consummation of the transactions contemplated by this Agreementhereby;
(be) any and all employee-related Liabilities liability or obligation of Seller accrued Sellers under or in connection with any action, suit, proceeding or investigation arising out of actionsacts, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries but not limited to, claims or actions pursuant to any statutes and wagesregulations with respect to short-term loans, (ii) accrued vacation usury statutes, the Equal Credit Opportunity Act and sick payRegulation B promulgated thereunder, (iii) accrued payroll Taxesthe federal Truth-in-Lending Act and Regulation Z promulgated thereunder, (iv) withholdingsthe federal Fair Credit Reporting Act, (v) charges of unfair labor practicesthe Federal Trade Commission’s Rule on Credit Practices, and any other federal, foreign, state or local statute, law, ruling, or (vi) discrimination complaints;
(c) ordinance; provided, however, that all such actions, proceedings, suits, and investigations arising out of 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 to employees of Selleracts, regardless of whether omissions or not such employees accept employment with Purchaser pursuant to Section 8.1;
(d) any and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before events occurring on or after the Closing Date, which may be asserted against Purchaser Date relating to the Acquired Assets or the Business or any activity, form or aspect thereof shall be the sole obligations of the Purchased Assets pursuant to any applicable bulk salesPurchaser, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
(e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handexcept as set forth in Section 3.11(a)(ii);
(f) any all costs, fees and all Liabilities relating to litigation other amounts of Sellers in connection with the existing lawsuits filed against First American Georgia and as more particularly described on Schedule 1.4(f) (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“Georgia Lawsuits”);
(g) any and all Liabilities liability or obligation of Seller arising by reason Sellers relating to any breach of any contract, breach of warranty, tort, infringement or violation of any Law or any requirement of any Governmental Body, including all Liabilities law arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of eventsacts, facts omissions or circumstances events occurring or existing on or prior to the Closing Date, except as set forth in Schedule 1.4(g);
(h) any liability or obligation of Sellers to any employee as a result of this transaction and all Liabilities relating to any liability or arising out of Excluded Assetsobligation under or in connection with any employee benefit plan, including Excluded Contractspolicy or practice, or any employment agreement, collective bargaining agreement or severance agreement except as set forth in Schedule 1.4(h);
(i) any and all Liabilities for liability or obligation of Sellers to indemnify any person by reason of the return by fact that such person was an employee, officer, director, manager or agent of Sellers (or such person was serving in any customer such capacity of Seller any other entity at the request of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents ) prior to the Closing Date;; and
(j) any and all Taxes arising from liability or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable obligation relating to any periodloan, line of credit, guaranty or any portion other indebtedness of any period, ending on or prior to the Closing Date, and income and similar Taxes, of a type Sellers not described in Section 7.11, that are imposed as a result of the sale of the Purchased Assets assumed by Purchaser pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of SellerSection 1.3.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained in this Section 1.5 or elsewhere in this Agreement, the Purchaser will shall not assume, be subject to or otherwise be liable for, or become responsible at any time for any liabilities or obligations of the Selling Companies or their respective Affiliates (or otherwise relating to the Selling Companies, their respective Affiliates, the Applicable Businesses or the Transferred Assets) other than the Assumed Liabilities, including all the following liabilities and obligations of the Selling Companies and their respective Affiliates (or otherwise relating to the Selling Companies, their respective Affiliates, the Applicable Businesses or the Transferred Assets) (collectively, the “Excluded Liabilities”), which are not Assumed Liabilities. All such liabilities part of the sale and purchase contemplated hereunder and which are not excluded from the Assumed Liabilities and shall be referred to as “Excluded Liabilities,” all remain the obligation of which Seller shall retain and remain liable for (whether such Excluded Liabilities are known or unknown, absolute, contingent, liquidated or unliquidated, due or to become due, and whether claims with respect thereto are asserted before or the appropriate Selling Company after the Closing). Excluded Liabilities shall include, but not be limited to, each of the following Liabilities:
(a) any all liabilities and all Liabilities of and/or on behalf of Seller for costs and expenses incurred in connection with this Agreement or the negotiation and consummation obligations of the transactions contemplated by this AgreementSelling Companies related to the Applicable Businesses solely with regard to or arising out of Repricing prior to the Closing under the Assumed Contracts;
(b) any and all employee-related Liabilities of Seller accrued liabilities or obligations arising out of actions, omissions any default or events occurring breach by any Selling Company prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Taxes, (iv) withholdings, (v) charges of unfair labor practices, or (vi) discrimination complaintsunder any contract;
(c) any and all Liabilities liabilities or obligations arising out of Seller for any claim by a customer, supplier or vendor with respect to any product or service provided by or to each Selling Company prior to the provision of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1;Closing; and
(d) any all liabilities and all other obligations set forth on Schedule 1.5. The Selling Companies each, jointly and severally, covenant and agree to satisfy and discharge each of the Excluded Liabilities owed to, or claims of, Seller’s creditorsas the same shall become due, whether arising before or otherwise relating to, if at all, facts, events or circumstances existing prior to, on or after the Closing Date, which may be asserted against Purchaser or any of Date (unless otherwise specifically set forth in the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws and which do not otherwise constitute Assumed Liabilities;
Inbound Transition Services Agreement (e) any and all Liabilities under any intercompany loans, accounts or Contracts between the Business, as defined on the one hand, and Seller attached Schedule A) or any of its affiliates, the Outbound Transition Services Agreement (as defined on the other hand;
(f) any 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;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law or any requirement of any Governmental Body, including all Liabilities arising from, related to or in connection with FCC enforcement actions, in each case, to the extent such Liability results from or arises out of events, facts or circumstances occurring or existing on or prior to the Closing Date;
(h) any and all Liabilities relating to or arising out of Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreementattached Schedule A);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller).
Appears in 1 contract
Excluded Liabilities. Purchaser will Buyer shall not assumeassume or be obligated to pay, perform, or be liable for, otherwise discharge any liabilities which are not Assumed Liabilities. All such liabilities which are not or obligations other than the Assumed Liabilities shall be referred to as “Excluded Liabilities,” all of which Seller shall retain and remain liable for (whether such Excluded Liabilities are accrued, absolute, fixed or unfixed, known or unknown, absoluteasserted or unasserted, contingent, liquidated by guaranty, surety or unliquidated, due assumption or to become due, and whether claims with respect thereto are asserted before or after otherwise) (the Closing“Excluded Liabilities”). The Excluded Liabilities shall include, but not be limited to, each of include liabilities and obligations relating to the following Liabilitiesmatters:
(a) any and all Liabilities of and/or on behalf debt of Seller for costs and expenses incurred in connection with this Agreement all related liabilities or the negotiation and consummation of the transactions contemplated by this Agreementobligations;
(b) any and all employee-related Liabilities liability or obligation in respect of Seller accrued or arising out of actions, omissions or events occurring prior to or on the Closing Date, including, without limitation: (i) accrued salaries and wages, (ii) accrued vacation and sick pay, (iii) accrued payroll Income Taxes, (iv) withholdingsfranchise Taxes or other Taxes based on income, (v) charges of unfair labor practicesrevenue or gross receipts, all liabilities for or (vi) discrimination complaintsrelating to other Taxes to the extent the other Taxes arise from or relate to any Pre-Closing Tax Period, and Taxes and other liabilities or obligations arising from or related to the Installment Sale Arrangement;
(c) any payables and all Liabilities other liabilities or obligations of the Seller for the provision Parties to any of health plan continuation coverage in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA to employees of Seller, regardless of whether or not such employees accept employment with Purchaser pursuant to Section 8.1their Affiliates;
(d) any costs and all Liabilities owed to, or claims of, Seller’s creditors, whether arising before or after expenses payable to third parties incurred by Seller incident to its negotiation and preparation of this Agreement and its performance and compliance with the Closing Date, which may be asserted against Purchaser or any of the Purchased Assets pursuant to any applicable bulk sales, bulk transfer or similar laws agreements and which do not otherwise constitute Assumed Liabilitiesconditions contained herein;
(e) any and all Liabilities under liabilities or obligations to the extent they relate to any intercompany loans, accounts or Contracts between the Business, on the one hand, and Seller or any of its affiliates, on the other handExcluded Assets;
(f) any 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 LiabilitiesEnvironmental Matters;
(g) any and all Liabilities of Seller arising by reason of any violation of any Law broker’s, finder’s, investment banker’s or any requirement of any Governmental Body, including all Liabilities arising from, related to similar fees or commissions in connection with FCC enforcement actions, in each case, to the extent such Liability results from transactions contemplated by this Agreement and based on agreements or arises out arrangements made by or on behalf of events, facts or circumstances occurring or existing on or prior to any of the Closing Date;Seller Parties; and
(h) any and all Liabilities liabilities or obligations under any Employee Benefit Plan or compensation arrangement or otherwise relating to or arising out of the employment of any individual by Seller. Notwithstanding anything to the contrary in Section 2.3, none of the Excluded Assets, including Excluded Contracts;
(i) any and all Liabilities specifically described above shall be Assumed Liabilities for the return by any customer purposes of Seller of products sold or distributed by Seller on or prior to the Closing Date or for a warranty claim for any product or service sold, distributed or performed, as the case may be, by Seller on or prior to the Closing Date based on any express warranty or implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents prior to the Closing Date;
(j) any and all Taxes arising from or with respect to the Purchased Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the 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 Assets pursuant to this Agreement (except, in any case, as otherwise provided in this Agreement);
(k) any Liabilities of the Seller for Indebtedness;
(l) any and all Liabilities of Seller under any Contract, other than the Purchased Contracts, and 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;
(m) 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;
(n) any and any Liabilities for the return by any customer of Seller of products sold or distributed by Seller on or prior to the Closing or any Liabilities for a warranty claim for any product or service sold, distributed or performed, as the case may be, by the Seller on or prior to the Closing based on any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or Seller’s employees or agents;
(o) any and all Liabilities of the Seller 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 the Seller, in each case, on or prior to the Closing Date;
(p) any and all Liabilities of Seller for severance pay or the like with respect to any employee of the Seller that does not accept employment with the Purchaser upon completion of the transaction contemplated by this Agreement;
(q) any and all Liabilities of Seller for salaries, commissions, bonuses, deferred compensation or like payments to any director, officer or employee of the Seller for the period prior to the Closing, except as otherwise expressly provided herein; and
(r) all Excluded Pre-Petition Liabilities. Notwithstanding any provisions in this Agreement to the contrary, Purchaser is assuming only the Assumed Liabilities and is not assuming any other Liability of Seller or its Subsidiaries (or any predecessor owner of all or part of the Business) of whatever nature. All such other Liabilities shall be retained by and remain Liabilities and obligations of Seller.
Appears in 1 contract