Assumed Obligations As additional consideration for the Acquired Assets, Buyer shall assume the following obligations and liabilities of Seller (the “Assumed Obligations”):
(i) obligations and liabilities of Seller (if any) arising before (except to the extent such obligations are imposed on Seller under the Existing Lease) or after the Closing Date under Real Property Interests and Contracts assigned to Buyer pursuant to the provisions hereof or under Line Agreements, as provided in Section 2.08(b);
(ii) except for any income tax liability Seller may incur from Seller selling the Acquired Assets to Buyer, all obligations, commitments and liabilities of the Public Parties, of whatever nature, whether known or unknown, asserted or unasserted, fixed, absolute or contingent, matured or unmatured, accrued or unaccrued, liquidated or unliquidated or due or to become due, which relate to the condition of the Real Property and the other Acquired Assets arising before or after the Closing Date, or which relate exclusively to the ownership, condition or operation of the Acquired Assets arising before or after the Closing Date, including those arising under statutes, rules, regulations and effective or pending orders of Governmental Authorities;
(iii) all Environmental Liabilities of the Public Parties arising before or after the Closing Date which arise out of or are related in any way to the condition, ownership or use of the Real Property or the Line Agreements or any other Acquired Assets, including without limitation (A) any environmental contamination or other condition, or the presence of Hazardous Substances, on the Real Property or other Acquired Assets, whether such contamination or Hazardous Substances are located on or under the Real Property or other Acquired Assets or have migrated or will migrate from or to the Real Property or other Acquired Assets, and (B) the handling, use, treatment, removal, storage, decontamination, cleanup, transport (except for transportation as a common carrier) or disposal of, or exposure to, Hazardous Substances, whether such conditions and/or Environmental Liabilities are known or unknown, suspected or unsuspected, contemplated or uncontemplated, and whether or not such conditions were caused by Seller or predecessors or Affiliates of Seller.
Retained Obligations Provided that the Closing occurs, Seller shall retain (a) all obligations and liabilities of Seller for the payment or improper payment of royalties, rentals and other similar payments under the Leases relating to the Subject Interests to the extent attributable to periods prior to the Effective Time; (b) all obligations of Seller under the Contracts for (i) overhead charges related to periods prior to the Effective Time, (ii) costs and expenses incurred prior to the Effective Time for goods and services provided prior to the Effective Time and (iii) other payment obligations that accrue and become due prior to the Effective Time; (c) all liability of Seller to Third Parties for personal injury or death to the extent occurring prior to the Effective Time as a result of the operation of the Assets; (d)(i) any and all income Taxes, franchise Taxes and similar Taxes imposed by any applicable law on Seller or any of its affiliates, or any combined, unitary, or consolidated group of which any of the foregoing is or was a member, (ii) Asset Taxes allocable to Seller pursuant to Section 9.02 taking into account, and without duplication of, such Asset Taxes effectively borne by Seller pursuant to Section 10.02(b)(iii) or Section 12.02, (iii) any Taxes imposed on or with respect to the ownership or operation of the Excluded Assets, and (iv) and any all other Taxes imposed on or with respect to the ownership or operation of the Assets for any tax period (or portion thereof) ending before the Effective Time; (e) all litigation existing as of the Closing Date, to the extent it relates to the period of time prior to the Effective Time; (f) any offsite disposal of hazardous materials by Seller from the Subject Interests to offsite locations occurring prior to the Effective Time; (g) Seller’s employment relationship with its employees and Seller’s employee benefit plans; (h) all liability of Seller under any credit facilities; (i) all liability of Seller under any hedging, swap, put, call, collar, future, derivative or similar arrangement; and (j) the Excluded Assets (collectively, the “Retained Obligations”, and the items specified in (c), (d), (f), (g), (h), (i), (j) and (k) herein, the “Specified Retained Obligations”).
Liabilities Assumed by Assuming Bank The Assuming Bank expressly assumes at Book Value (subject to adjustment pursuant to Article VIII) and agrees to pay, perform, and discharge all of the following liabilities of the Failed Bank as of Bank Closing, except as otherwise provided in this Agreement (such liabilities referred to as "Liabilities Assumed"):
(a) Assumed Deposits, except those Deposits specifically listed on Schedule 2.1(a); provided, that as to any Deposits of public money which are Assumed Deposits, the Assuming Bank agrees to properly secure such Deposits with such of the Assets as appropriate which, prior to Bank Closing, were pledged as security therefor by the Failed Bank, or with assets of the Assuming Bank, if such securing Assets, if any, are insufficient to properly secure such Deposits;
(b) liabilities for indebtedness secured by mortgages, deeds of trust, chattel mortgages, security interests or other liens on or affecting any Assets, if any; provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(c) borrowings from Federal Reserve Banks and Federal Home Loan Banks, if any, provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the assets securing such liability as determined by the Receiver; and overdrafts, debit balances, service charges, reclamations, and adjustments to accounts with the Federal Reserve Banks as reflected on the books and records of any such Federal Reserve Bank within ninety (90) days after Bank Closing, if any;
(d) ad valorem taxes applicable to any Asset, if any; provided, that the assumption of any ad valorem taxes pursuant to this paragraph shall be limited to an amount equal to the market value of the Asset to which such taxes apply as determined by the Receiver;
(e) liabilities, if any, for federal funds purchased, repurchase agreements and overdrafts in accounts maintained with other depository institutions (including any accrued and unpaid interest thereon computed to and including Bank Closing); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(f) United States Treasury tax and loan note option accounts, if any;
(g) liabilities for any acceptance or commercial letter of credit (other than "standby letters of credit" as defined in 12 C.F.R. Section 337.2(a)); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(h) duties and obligations assumed pursuant to this Agreement including without limitation those relating to the Failed Bank's credit card business, overdraft protection plans, safe deposit business, safekeeping business or trust business, if any;
(i) liabilities, if any, for Commitments;
(j) liabilities, if any, for amounts owed to any Subsidiary of the Failed Bank acquired under Section 3.1;
(k) liabilities, if any, with respect to Qualified Financial Contracts;
(l) duties and obligations under any contract pursuant to which the Failed Bank provides mortgage servicing for others, or mortgage servicing is provided to the Failed Bank by others; and
(m) all asset-related offensive litigation liabilities and all asset-related defensive litigation liabilities, but only to the extent such liabilities relate to assets subject to a loss share agreement, and provided that all other defensive litigation and any class actions with respect to credit card business are retained by the Receiver. Schedule 2.1 attached hereto and incorporated herein sets forth certain categories of Liabilities Assumed and the aggregate Book Value of the Liabilities Assumed in such categories. Such schedule is based upon the best information available to the Receiver and may be adjusted as provided in Article VIII.
Excluded Liabilities All Liabilities of the Seller other than the Assumed Liabilities shall be excluded from the sale to the Purchaser, regardless of whether such Liabilities are imposed by law, contract or otherwise (collectively “Excluded Liabilities”), including, without limitation, the following Liabilities:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liabilities for (i) Taxes of the Seller or (ii) Taxes on Purchased Assets to the extent they are allocable to periods ending on and including the Closing Date or (iii) value added Tax resulting from supplies of the Seller or the reduction of input value added Tax claimed by the Seller (alle Verbindlichkeiten bezüglich (i) Steuern des Verkäufers oder (ii) Steuern der verkauften Vermögensgegenstände soweit sie Zeiträumen zuzuordnen sind, die am und einschließlich des Closing Dates enden oder (iii) Umsatzsteuer die aus Vorräten des Verkäufers oder einer vom Verkäufer geforderten Herabsetzung der Vorsteuer resultiert);
(c) any Liabilities relating to or arising out of any Excluded Assets or Excluded Contracts;
(d) any Liabilities for purchase orders for wood or other consumables that are not an Assumed PO and sales orders or commitments for lumber that are not an Assumed SO;
(e) any Liabilities of the Seller which constitute intercompany payables owing to their Affiliated Companies or which constitute debt, loans or credit facilities owing to lenders;
(f) any Liabilities of the Business 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 (ii) are issued by the Business’ customers to the Seller on or before Closing (iii) did not arise in the Ordinary Course of Business or (iv) are not validly and effectively assigned to Purchaser pursuant to this Agreement;
(g) any claims, Environmental Liabilities, 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 the Seller; and
(h) any Liabilities arising out of, in respect of or in connection with (i) the failure by the Seller to comply with any law or order of a Governmental Authority, or (ii) payments or entitlements under the EEG received by the Seller or its Affiliates without the respective entitlement.
Assumed Liabilities Upon Closing, Buyer assumes and hereby agrees to fulfill, perform, be bound by, pay and discharge (or cause to be fulfilled, performed, paid or discharged) all obligations and liabilities of any kind whatsoever of Seller arising from or relating to the Assets or the Companies, whether known or unknown, liquidated or contingent, and regardless of whether the same are deemed to have arisen, accrued or are attributable to periods prior to, on or after the Effective Time, including obligations and liabilities of Seller concerning: (a) the use, ownership or operation of the Assets or the ownership or operation of the Companies, (b) any obligations under or relating to any Contracts, (c) furnishing makeup Hydrocarbons and/or settling and paying for Imbalances according to the terms of applicable operating agreements, gas balancing agreements, Hydrocarbons sales, processing, gathering or transportation Contracts and other Contracts, (d) paying all obligations owed to working interest, royalty, overriding royalty, net profits and other interest owners and operators relating to the Assets, including their share of any revenues or proceeds attributable to production or sales of Hydrocarbons, (e) all Environmental Liabilities, (f) properly plugging, re-plugging and abandoning the Xxxxx, (g) any obligation or liability for the dismantling, decommissioning, abandoning and removing of the Xxxxx or Equipment, (h) any obligation or liability for the cleaning up, restoration and/or remediation of the premises covered by or related to the Assets in accordance with applicable Contracts, Laws and all Environmental Laws, and (i) any obligation or liability regarding permits held by the Companies or transferred to Buyer and relating to the Assets (all of the obligations and liabilities described in this Section 2.10 are collectively referred to as the “Assumed Liabilities”); provided, Buyer does not assume (and Assumed Liabilities shall not include): (i) the Retained Liabilities, (ii) any obligations or liabilities of Seller to the extent that they are attributable to or arise out of the ownership, use or operation of the Excluded Assets, or (iii) any other Claims for which Seller is required to indemnify Buyer pursuant to Section 3.9, Section 3.19, Article 4 or Section 12.1.
Liabilities Assumed by Assuming Institution The Assuming Institution expressly assumes at Book Value (subject to adjustment pursuant to Article VIII) and agrees to pay, perform, and discharge all of the following liabilities of the Failed Bank as of Bank Closing, except as otherwise provided in this Agreement (such liabilities referred to as "Liabilities Assumed"):
(a) Assumed Deposits, except those Deposits specifically listed on Schedule 2.1(a); provided, that as to any Deposits of public money which are Assumed Deposits, the Assuming Institution agrees to properly secure such Deposits with such Assets as appropriate which, prior to Bank Closing, were pledged as security by the Failed Bank, or with assets of the Assuming Institution, if such securing Assets, if any, are insufficient to properly secure such Deposits;
(b) liabilities for indebtedness secured by mortgages, deeds of trust, chattel mortgages, security interests or other liens on or affecting any Assets, if any; provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(c) borrowings from Federal Reserve Banks and Federal Home Loan Banks, if any, provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the assets securing such liability as determined by the Receiver; and overdrafts, debit balances, service charges, reclamations, and adjustments to accounts with the Federal Reserve Banks as reflected on the books and records of any such Federal Reserve Bank within ninety (90) days after Bank Closing, if any;
(d) ad valorem taxes applicable to any Asset, if any; provided, that the assumption of any ad valorem taxes pursuant to this paragraph shall be limited to an amount equal to the market value of the Asset to which such taxes apply as determined by the Receiver;
(e) liabilities, if any, for federal funds purchased, repurchase agreements and overdrafts in accounts maintained with other depository institutions (including any accrued and unpaid interest thereon computed to and including Bank Closing); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(f) United States Treasury tax and loan note option accounts, if any;
(g) liabilities for any acceptance or commercial letter of credit (including any "standby letters of credit" as defined in 12 C.F.R. Section 337.2(a) issued on the behalf of any Obligor of a Loan acquired hereunder by the Assuming Institution, but excluding any other standby letters of credit); provided, that the assumption of any liability pursuant to this paragraph shall be limited to the market value of the Assets securing such liability as determined by the Receiver;
(h) duties and obligations assumed pursuant to this Agreement including without limitation those relating to the Failed Bank's Records, credit card business, overdraft protection plans, safe deposit business, safekeeping business or trust business, if any;
(i) liabilities, if any, for Commitments;
(j) liabilities, if any, for amounts owed to any Subsidiary of the Failed Bank acquired under Section 3.1;
(k) liabilities, if any, with respect to Qualified Financial Contracts;
(l) duties and obligations under any contract pursuant to which the Failed Bank provides mortgage servicing for others, or mortgage servicing is provided to the Failed Bank by others, including (i) any seller obligations, including seller origination; and repurchase obligations, and (ii) any government sponsored enterprise (“GSE”) seller or servicer obligations, provided that, if the Assuming Institution is not an approved GSE servicer, or does not intend or is unable to become an approved GSE servicer, the Assuming Institution will cooperate with Receiver and the GSE to effect the transfer of any such servicing obligations to a GSE approved servicer; and
(m) all asset-related offensive litigation liabilities and all asset-related defensive litigation liabilities, but only to the extent such liabilities relate to assets subject to a shared-loss agreement, and provided that all other defensive litigation and any class actions with respect to credit card business are retained by the Receiver. Schedule 2.1 attached hereto and incorporated herein sets forth certain categories of Liabilities Assumed and the aggregate Book Value of the Liabilities Assumed in such categories. Such schedule is based upon the best information available to the Receiver and may be adjusted as provided in Article VIII.
Retained Liabilities Except as otherwise set forth in this Agreement, and subject to Article VII, the Sellers shall retain, and none of Purchaser or any of its Affiliates shall assume or be responsible for pursuant to this Agreement, any Liabilities of Sellers or any of their Affiliates other than the Assumed Liabilities (such Liabilities other than the Assumed Liabilities, the “Retained Liabilities”). The Retained Liabilities shall include:
(a) all Liabilities for which any Seller expressly has responsibility pursuant to the terms of this Agreement or any Ancillary Implementing Agreement, including all Liabilities for which the Sellers have responsibility pursuant to Section 6.6;
(b) all Liabilities of any Seller or Conveyed Subsidiary (or Subsidiaries thereof) to the extent related to or arising out of (i) the Excluded Assets (other than any Liabilities for which Purchaser or its Affiliates expressly has responsibility pursuant to the terms of this Agreement or any Ancillary Agreement, and other than any Liabilities that are separately allocated pursuant to any other agreement or transaction related to such Excluded Assets between Seller Parent or any of its Affiliates, on the one hand, and Purchaser or any of its Affiliates, on the other hand, including any commercial or other agreements unrelated to this Agreement), including Environmental Liabilities, whether arising prior to, on or after the Closing, to the extent arising out of or related to the ownership or occupancy of the Retained Facilities (the “Retained Facilities Environmental Liabilities”) or (ii) the matters set forth on Section 2.5(b)(ii) of the Seller Disclosure Letter (the “Retained Environmental Liabilities”);
(c) all Seller Indemnified Taxes;
(d) all Seller Transaction Expenses;
(e) Seller Parent’s portion of Shared Contractual Liabilities pursuant to Section 2.2(d);
(f) all Indebtedness of Seller Parent and its Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) that are not Assumed Liabilities under Section 2.4; and
(g) all Liabilities of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) set forth in Section 2.5(g) of the Seller Disclosure Letter.
Excluded Assets and Liabilities The list of Assets described in this Agreement as being purchased is exclusive and the Parties agree that all remaining assets of ESSI and/or Seller are not to be purchased pursuant to this Agreement and shall be Excluded Assets. It is further agreed that in acquiring the Assets, Buyer is not assuming or undertaking to assume and shall have no responsibility for any liabilities whether fixed or contingent, past, present or future, or direct or indirect, arising out of or in connection with the Assets, or any other acts or omissions of ESSI and/or Seller in connection therewith prior to the Closing (collectively referred to as the "Excluded Liabilities"), including without limitation, (i) any claim arising out of or in connection with the failure by ESSI or Seller to comply with any applicable government regulation; (ii) federal, state or local tax liabilities (including any depreciation, investment tax credit recapture and rollback taxes); (iii) any claim arising out of or in connection with any Employee Plans of ESSI or Seller or with the employment by ESSI or Seller of any of its employees or any past employees or with the termination of any current employees; (iv) any claim resulting from defective products or workmanship (including any recalls or returns with respect thereto) related to goods or services invoiced prior to Closing; (v) any claim arising from environmental liabilities, and (vi) any claim under any provision of the New York Uniform Commercial Code or bulk sales law. LIMITATIONS ON WARRANTIES. EXCEPT FOR THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER EXPRESSLY DISCLAIMS AND NEGATES AND BUYER HEREBY WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. AS EXAMPLES AND FOR THE AVOIDANCE OF DOUBT, BUT WITHOUT LIMITATION OF THE FOREGOING, THE ASSETS SHALL BE CONVEYED PURSUANT HERETO WITHOUT ANY WARRANTY OR REPRESENTATION WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE QUANTITY, PROFITABILITY, COLLECTIBILITY, QUALITY, CONDITION, SIZE, WEIGHT, SERVICEABILITY, CONFORMITY TO SAMPLES OR ANY OTHER ASPECT OF THE FIXTURES, EQUIPMENT OR OTHER PERSONAL PROPERTY INCLUDED AMONG THE ASSETS, ALL OF WHICH SHALL BE CONVEYED TO THE BUYER AS IS, WHERE IS, AND WITH ALL FAULTS AND DEFECTS AND IN THEIR PRESENT CONDITION AND STATE OF REPAIR AND WITHOUT ANY WARRANTIES WHATSOEVER OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. THE BUYER ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS.
Assumption of Assumed Liabilities (a) Except as expressly provided in Section 2.4(b), the Purchaser shall not assume, in connection with the transactions contemplated hereby, any liability or obligation of either Seller whatsoever, whether known, unknown, absolute, contingent or otherwise, and whether accrued or unaccrued.
(b) Subject to the foregoing Section 2.4(a), effective as of the Closing Date, the Purchaser shall assume the following liabilities and obligations of the Sellers arising out of the use, ownership or operation of the Business, the Facilities or the other Assets (collectively, the “Assumed Liabilities”):
(i) the obligations of the Sellers under (x) each Assumed Contract, related to the rights under each Assumed Contract assigned to the Purchaser under the Assignment and Assumption Agreement, (y) each JWWTP Agreement to the extent assigned to the Purchaser under the Assignment (JWWTP Agreements) and (z) each License included in the Assets required to be performed on or after the Closing Date;
(ii) all accounts payable, accrued expenses and other current liabilities of the Sellers related to the Business and accrued or existing as of the Closing Date, but only to the extent included in the determination of Final Net Working Capital;
(iii) all liabilities and obligations, known or unknown, relating to, resulting from, arising out of or in connection with, directly or indirectly, (A) events that occur, (B) services performed or products manufactured or sold, or (C) the ownership, operation or use of the Business and the Assets, in each case, from and after the Closing;
(iv) liabilities and obligations relating to or arising from physical or bodily injuries to, or damage to the property of, third parties that occur from and after the Closing to the extent caused by the physical condition of the Assets (which are being transferred as-is, where-is);
(v) liabilities arising in connection with any severance plan established by the Purchaser on or after the Closing Date; and
(vi) liabilities under any of the CBAs or any other collective bargaining agreement or other labor arrangement, including any grievances, to the extent arising from any act or omission after the Closing.
Excluded Obligations Notwithstanding anything to the contrary expressed or implied in the Debt Documents, the Security Agent shall not:
(a) be bound to enquire as to (i) whether or not any Default has occurred or (ii) the performance, default or any breach by a Debtor or a Security Grantor of its obligations under any of the Debt Documents;
(b) be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account;
(c) be bound to disclose to any other person (including but not limited to any Secured Party) (i) any confidential information or (ii) any other information if disclosure would, or might in its reasonable opinion, constitute a breach of any law or be a breach of fiduciary duty; and
(d) have or be deemed to have any relationship of trust or agency with, any Debtor.