4Excluded Liabilities. Except for the Assumed Liabilities, Buyer shall not assume, and shall have no liability for, any Liabilities of ReShape or any ReShape Affiliate of any kind, character or description, it being understood that Xxxxx is expressly disclaiming any express or implied assumption of any Liabilities other than the Assumed Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Liabilities”):
(a) any of the Excluded Assets;
(b) Taxes (other than Transfer Taxes, which shall be governed solely by Section 1.8) (i) in respect of or imposed upon ReShape or any of its Affiliates for any taxable period, or (ii) imposed with respect to the Purchased Assets or the ReShape Business for any taxable period (or portion thereof) ending on or prior to the Closing Date; and
(c) any current or former employee or contractor of ReShape, or any of its Affiliates, including any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers' compensation, severance, retention, termination or other payments.
4Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, Seller shall retain, and shall be responsible for paying, performing and discharging when due, and Purchaser shall not assume or have any responsibility for, any Liabilities of Seller other than the Assumed Liabilities, including without limitation, the following Liabilities (collectively, the “Excluded Liabilities”):
(1) all Liabilities to the extent arising out of, resulting from or related to the Products or the Purchased Assets prior to the Closing or Seller’s use or operation of the Products or the Purchased Assets prior to the Closing, including to the extent arising out of or relating to the design, testing, marketing, labeling, manufacture, distribution, use or sale of any Products prior the Closing (other than the Assumed Pre-Closing Warranty and Recall Liabilities Amount);
(2) all Liabilities, whether arising before, on or after the Closing arising out of, resulting from or related to the Excluded Assets;
(3) all Liabilities related to Product warranty claims (i) with respect to Products sold prior to the Closing or (ii) arising with respect to or related to any return, refund or Recall with respect to Products manufactured prior to the Closing, including all Liabilities for any credits, rebate or other amounts payable in respect of any return of Products sold prior to the Closing, in each case of clauses (i) and (ii), to the extent the aggregate amount of such Liabilities exceeds the Assumed Pre-Closing Warranty and Recall Liabilities Amount;
(4) all Liabilities of Seller for borrowed money;
(5) all outstanding accounts payable under the Assigned Contracts arising prior to the Closing Date;
(6) all Liabilities under any Assigned Contract (i) arising prior to the Closing or (ii) that arise after the Closing and arise out of or relate to any breach by Seller of, or failure to comply with, prior to the Closing, any covenant or obligation in any such Assigned Contract;
4Excluded Liabilities. Other than the Assumed Liabilities and Permitted Encumbrances, Buyer shall not assume and shall not be responsible to pay, perform or discharge any debts, liabilities or obligations of any Seller or with respect to the Purchased Assets, the Spring Valley Business or the Additional Spring Valley Business, whether known, unknown, direct, indirect, absolute, contingent or otherwise, or arising out of facts, circumstances or events in existence on or prior to Closing including the following (collectively, the “Excluded Liabilities”):
a) any liabilities or obligations relating to or arising out of the Excluded Assets;
b) all liabilities and obligations resulting from any (i) fine, (ii) penalty, (iii) claim for damages, (iv) health and safety violation, (v) regulatory order or (vi) breach of Law or Contract, in each case, due to any Seller’s acts or omissions as the operator or manager of the Additional Spring Valley Assets;
c) any liabilities or obligations for Taxes: (i) relating to the Spring Valley Business, the Additional Spring Valley Business, the Purchased Assets or the Assumed Liabilities for any taxable period or portion thereof ending on or prior to the Closing Date (and for this purpose, any Taxes for any Straddle Period shall be allocated in the same manner as Section 2.3(c)); and (ii) Taxes of any Seller or an Affiliate of any Seller not related to the Spring Valley Business;
d) any liabilities or obligations relating to or arising out of the broker fees disclosed in Section 3.13;
e) any liabilities or obligations relating to any employees of, or employment contracts with any employees of, any Seller or its Affiliates or any employee benefit plans, unemployment benefit, bonus, incentive, profit sharing, termination, pension, retirement, stock option, stock purchase, health, welfare, medical, disability or life insurance or similar plan in respect of the employees of any Seller or its Affiliates; and
f) any liabilities and obligations of any Seller set forth in Schedule 2.4(f).
4Excluded Liabilities. Notwithstanding the foregoing, the parties expressly acknowledge and agree that the Operating Partnership shall not assume or agree to pay, perform or otherwise discharge any liabilities, obligations or other expenses of the Contributor (or acquire the Property subject thereto) listed on Schedule 2.4 attached hereto (the “Excluded Liabilities”), and such Excluded Liabilities shall not be contributed, transferred, assigned, conveyed or delivered to the Operating Partnership pursuant to this Agreement or any other means, and the Operating Partnership shall not have any obligations with respect thereto.
4Excluded Liabilities. Notwithstanding anything herein to the contrary, the Parties expressly acknowledge and agree that Buyer shall not assume, be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of Sellers, whether existing on the Closing Date or arising thereafter, including all Taxes owed by the Sellers to any tax authority, other than the Assumed Liabilities (all such liabilities that Buyer is not assuming being referred to collectively as the “Excluded Liabilities”). For the avoidance of doubt, any Cure Cost above $1,000,000 for Assumed Contracts that are Leases shall constitute an Excluded Liability.
4Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall be construed to impose on Purchaser, and Purchaser shall not assume or be obligated to pay, perform or otherwise discharge, the following liabilities or obligations (the “Excluded Liabilities”):
(a) Any liabilities or obligations of Seller in respect of any Excluded Assets or other assets of Seller which are not Purchased Assets or related to the Purchased Assets;
(b) any liabilities or obligations in respect of Taxes attributable to the ownership, operation or use of the Purchased Assets for taxable periods, or portions thereof, ending before the Closing;
(c) any payment obligations of Seller for goods delivered or services rendered prior to the Closing Date except expenditures made pursuant to Section 5.13 or as otherwise provided herein;
(d) any fines or penalties imposed by a Governmental Authority resulting from acts or omissions of Seller prior to the Closing;
(e) any liabilities, obligations or responsibilities of Seller relating to the employment or termination of employment of any employee of Seller.
(f) any liability, obligations or responsibilities under or related to any current or future Environmental Laws or the common law, arising as a result of or in connection with the ownership or operation of the Purchased Assets on or before the Closing Date.
4Excluded Liabilities. Notwithstanding any provision herein to the contrary, Buyer shall not be the successor to Seller with respect to, and shall not assume or be obligated to pay, perform or otherwise discharge, any Liabilities, in each case, other than the Assumed Liabilities and the Parties acknowledge that, for the avoidance of doubt, the “Assumed Liabilities” do not include the Liabilities of Seller set forth on Schedule IV (all such Liabilities that Buyer is not assuming being referred to collectively as the “Excluded Liabilities”). Any Pre-Closing Taxes shall be treated as Excluded Liabilities.
4Excluded Liabilities. At the Closing, Sentynl shall not assume, and shall not be responsible to pay, perform, or discharge, the following Liabilities (the “Excluded Liabilities”):
4Excluded Liabilities. Buyer will not assume or be responsible for any Liability or obligation of Seller or its Affiliates that is not specifically identified as an Assumed Liability under Section 2.3 (it being understood that Buyer is expressly disclaiming any express or implied assumption of any Liabilities other than the Assumed Liabilities), including any and all of the following (collectively, the “Excluded Liabilities”):
(a) all Liabilities and obligations of Seller or its Affiliates arising out of or relating to the Acquired Assets prior to the Closing;
(b) any Liabilities and obligations of Seller or its Affiliates arising under this Agreement or any Transaction Document;
(c) all Liabilities in respect of any Proceeding against Seller or its Affiliates (i) which shall have been asserted prior to the Closing or (ii) to the extent the basis of which shall have arisen out of, is related to or is in respect of periods prior to the Closing;
(d) any Liability and obligation of Seller and its Affiliates for any Indebtedness of any kind whatsoever;
(e) any Liability and obligation of Seller and its Affiliates for any intercompany account balances;
(f) any Excluded Taxes;
(g) any Liabilities and obligations arising out of or relating to the ownership of the Excluded Assets, whether arising before, on or after the Closing; and
(h) other specifically identified excluded Liabilities set forth on Schedule 2.4.
4Excluded Liabilities. Notwithstanding any other provision of this Agreement or any other writing to the contrary, the Purchaser is assuming only the Assumed Liabilities and except for the Assumed Liabilities, it is not assuming, nor shall it agree to pay, perform, be responsible for or discharge, any other Liability of the Seller or any Affiliate of the Seller or the Business including the Plazomicin Business, of whatever nature, whether presently in existence or arising hereafter, and whether absolute, contingent, accrued, known or unknown (the “Excluded Liabilities”). Without limiting the generality of the prior sentence, Excluded Liabilities include the following:
