Assumed and Excluded Liabilities. Except as otherwise specifically provided in this Section 4.1, Purchaser is not assuming any Liability of any Seller, or the Business of any kind or nature, absolute or contingent, known or unknown, and whether or not Purchaser is a successor to such Liability by operation of Applicable Law, including without limitation, liabilities and obligations of any Seller, or the Business with respect to customer or employee obligations, workers’ compensation, occupational injury or disease, pension and other benefits, product liability, warrant, or a violation of any federal, state or local law, regulation or ordinance (the “Excluded Liabilities”). At Closing, Purchaser shall assume and agree to discharge and perform when due only the following liabilities and obligations of Sellers, as the same shall exist at Closing (the “Assumed Liabilities”): (a) all Liabilities under the Assumed Contracts (including, without limitation, the Real Estate Leases) and the Construction Documents arising on or after Closing, so long as such Liability, or its incurrence or existence, does not arise or relate to a breach or failure of, or a default under, any term, condition or provision of such Assumed Contract or Construction Document that occurred prior to the Closing; (b) the remaining motor vehicle repair work with respect to the Work in Progress; (c) Liabilities to discharge and satisfy the We Owes, but only to the extent of the dollar-for-dollar credit against the Asset Purchase Price applicable to the We Owes (which credit shall be provided by Sellers to Purchaser at Closing). The term “We Owes” as used in this Agreement refers to the obligations made by a Seller to a customer to deliver to the customer additional products or services not available or delivered at the time of the sale of the vehicle. Sellers shall deliver to Purchaser at Closing a schedule of all such obligations along with reasonable supporting documentation substantiating the We Owes and Sellers’ projected actual cost to perform the same. Following Closing, Purchaser shall perform the obligations of the applicable Seller on We Owes pertaining to vehicles sold or serviced by such Seller prior to Closing. To the extent Purchaser has not received credit against the Asset Purchase Price for We Owe work, then if Purchaser performs the same and makes a claim therefor against Sellers within one (1) year following with Closing Date (which claim shall be in writing and supported by reasonable documentation evidencing the We Owes as to which such claim is made, and the actual costs incurred by Purchaser in performing the same), Sellers shall reimburse Purchaser within thirty (30) days after such written demand for the actual costs incurred by Purchaser in performing such We Owes; and
Appears in 1 contract
Samples: Asset Purchase Agreement (Asbury Automotive Group Inc)
Assumed and Excluded Liabilities. Except (a) Upon the terms and subject to the conditions of this Agreement, other than the Excluded Liabilities, US Buyer agrees to assume at the Closing (with effect as otherwise specifically provided in this Section 4.1of the Effective Time): (i) US Sellers’ obligations to perform only those obligations under the Assumed Contracts to which it is a party, Purchaser is and only to the extent that such obligations arise after the Closing, that do not assuming relate to or arise from any Liability breach, default or violation of any Seller, or the Business provision of any kind such Assumed Contracts with respect to pre-Closing periods (including any circumstance occurring prior to the Closing that with the passage of time will result in a breach, default or nature, absolute or contingent, known or unknown, and whether or not Purchaser is a successor to such Liability by operation of Applicable Lawviolation following the Closing Date), including without limitationwarranty obligations arising in connection with services provided following the Closing (the “US Contract Liabilities”), (ii) current obligations, liabilities and commitments of the Business that are incurred by a US Seller prior to the Closing in the ordinary course of business and listed on Schedule 1.3(a) and in the Estimated Closing Statement (the “US Business Liabilities”), and (iii) those accounts payable incurred prior to the Closing Date identified in the Estimated Closing Statement (the “US Assumed Accounts Payable” and together with the Transition Liabilities, the US Contract Liabilities and the US Business Liabilities, the “US Assumed Liabilities”).
(b) Upon the terms and subject to the conditions of this Agreement, other than the Excluded Liabilities, Canada Buyer agrees to assume at the Closing (with effect as of the Effective Time): (i) Canada Seller’s obligations to perform only those obligations under the Assumed Contracts to which it is a party, and only to the extent that such obligations arise after the Closing, that do not relate to or arise from any breach, default or violation of any Seller, or the Business provision of any such Assumed Contracts with respect to customer pre-Closing periods (including any circumstance occurring prior to the Closing that with the passage of time will result in a breach, default or employee violation following the Closing Date), including warranty obligations arising in connection with services provided following the Closing (the “Canada Contract Liabilities”), (ii) current obligations, workers’ compensationliabilities and commitments of the Business that are incurred by the Canada Seller prior to the Closing in the ordinary course of business and listed on Schedule 1.3(b) and in the Estimated Closing Statement (the “Canada Business Liabilities”), occupational injury (iii) the notice and severance requirements related to any Transferred Canadian Employee and severance requirements related to any Canadian Employees to whom a Buyer does not make an offer of employment on materially comparable terms or diseasemore favorable terms to the employee comparable to such employee’s existing employment terms with the applicable Seller (the “Canada Benefits Liabilities”), pension and other benefits(iv) those accounts payable incurred prior to the Closing Date identified in the Estimated Closing Statement (the “Canada Assumed Accounts Payable” and, product liabilitytogether with the Canada Business Liabilities, warrantthe Canada Benefits Liabilities and the Canada Assumed Accounts Payable, or a violation the “Canada Assumed Liabilities”). The US Assumed Liabilities and the Canada Assumed Liabilities shall be referred to herein as the “Assumed Liabilities.”
(c) Other than the Assumed Liabilities, no Buyer shall assume any Liabilities of any federalSeller (all Liabilities of Sellers other than the Assumed Liabilities, state or local law, regulation or ordinance (the “Excluded Liabilities”). At Closing, Purchaser shall assume and agree to discharge and perform when due only the following liabilities and obligations of Sellers, as the same shall exist at Closing (the “Assumed Liabilities”):including:
(ai) all Liabilities under the Assumed Contracts (including, without limitation, the Real Estate Leases) and the Construction Documents arising on or after Closing, so long as such Liability, or its incurrence or existence, does not arise or relate to a breach or failure of, or a default under, any term, condition or provision of such Assumed Contract or Construction Document that occurred accounts payable incurred prior to the ClosingClosing Date other than the US Assumed Accounts Payable and Canada Assumed Accounts Payable and those set forth on Schedules 1.3(a) and 1.3(b);
(bii) the remaining motor vehicle repair work with respect any liability or obligations for (A) any Taxes of Sellers or any of their Affiliates, (B) any Taxes attributable to the Work in ProgressTransferred Assets, the Business, or the Assumed Liabilities for taxable periods (or portions thereof) ending on or before the Closing Date, and (C) Transfer Taxes;
(ciii) Liabilities any Benefits Liabilities, other than the Canada Benefits Liabilities;
(iv) any Liability arising out of or resulting from the claims of creditors which are or could be asserted against any Buyer by reason of Sellers’ non-compliance with the provisions of the bulk transfer Laws of any Governmental Authority in connection with the Transaction;
(v) any Transaction Expenses of Sellers;
(vi) any Liability (including related Actions) arising out of, in respect of or in connection with the failure by any Seller to discharge and satisfy comply with any Law or Governmental Authorization in respect of the We Owes, but only Business or to obtain or comply with any Governmental Authorization on or prior to the extent Closing Date;
(vii) any Funded Indebtedness;
(viii) any Liability arising out of, in respect of the dollar-for-dollar credit against the Asset Purchase Price applicable or in connection with Sellers’ classification of employees and independent contractors prior to the We Owes Closing under applicable Law;
(which credit shall be provided by Sellers to Purchaser at Closingix) any Environmental Liabilities of any Seller;
(x) the Liabilities listed or associated with the items listed on Schedule 1.3(c)(x). The term “We Owes” as used in this Agreement refers to the obligations made by a Seller to a customer to deliver to the customer additional products or services not available or delivered at the time of the sale of the vehicle. Sellers shall deliver to Purchaser at Closing a schedule of all such obligations along with reasonable supporting documentation substantiating the We Owes and Sellers’ projected actual cost to perform the same. Following Closing, Purchaser shall perform the obligations of the applicable Seller on We Owes pertaining to vehicles sold or serviced by such Seller prior to Closing. To the extent Purchaser has not received credit against the Asset Purchase Price for We Owe work, then if Purchaser performs the same and makes a claim therefor against Sellers within one (1) year following with Closing Date (which claim shall be in writing and supported by reasonable documentation evidencing the We Owes as to which such claim is made, and the actual costs incurred by Purchaser in performing the same), Sellers shall reimburse Purchaser within thirty (30) days after such written demand for the actual costs incurred by Purchaser in performing such We Owes; and.
Appears in 1 contract
Assumed and Excluded Liabilities. Except as otherwise specifically provided in (a) Upon the terms and subject to the conditions of this Section 4.1Agreement, on the Closing Date, Purchaser is not assuming any Liability shall assume and agree to perform and discharge, when due (in accordance with their respective terms and subject to the respective conditions thereof) only the following obligations, claims and liabilities of any SellerSeller and no others (collectively, the “Assumed Liabilities”):
(i) liabilities arising from the ownership of the Purchased Assets on and after the Closing Date, (ii) liabilities under the Assumed Contracts arising on and after the Closing; (iii) the Cure Claims; and
(iv) post-petition trade payables arising from the operation of the Business by Purchaser or its Subsidiary in the ordinary course.
(b) Seller shall retain, and shall be responsible for paying or performing when due, or the Business of any kind or nature, absolute or contingent, known or unknowndischarging, and whether shall pay or not Purchaser is a successor to such Liability by operation of Applicable Law, including without limitation, liabilities and obligations of any Sellerperform when due, or discharge, and the Business with respect Purchaser shall not assume or have any responsibility for, all liabilities of Seller or its Affiliates not expressly assumed by Purchaser pursuant to customer or employee obligations, workers’ compensation, occupational injury or disease, pension and other benefits, product liability, warrant, or a violation Section 2.3(a) of any federal, state or local law, regulation or ordinance this Agreement (the “Excluded Liabilities”). At ClosingThe term Excluded Liabilities shall specifically include, Purchaser shall assume without limitation:
(i) Taxes accruing during the Pre-Closing Tax Period;
(ii) any and agree all liabilities accruing and/or arising out of or relating to discharge the
(iii) except for the CRCMS fee subject to approval by the court, any and perform when due only all liabilities of Seller under this Agreement and all legal, accounting, brokerage, investment banking and finder’s fees or other fees and expenses incurred by or on behalf of Seller in connection with this Agreement and the following transactions contemplated hereby;
(iv) any and all liabilities and obligations to current and former employees or contractors of Sellers, as the same shall exist at Closing (the “Assumed Liabilities”):
(a) all Liabilities under the Assumed Contracts (including, without limitation, the Real Estate Leases) and the Construction Documents arising on or after Closing, so long as such LiabilitySeller, or its incurrence arising under or existencein connection with any Seller Plans, does not arise or relate to a breach or failure ofand including commissions payable, deferred compensation, past due wages, or a default under, any term, condition or provision of such Assumed Contract or Construction Document that occurred prior to the Closinginterest payable;
(bv) the remaining motor vehicle repair work with respect any and all liabilities and obligations arising out of or relating to the Work in Progressany line-of-credit or other payable or debt facility or instrument;
(cvi) Liabilities to discharge any and satisfy the We Owesall pre-petition trade payables or other accounts payable of
(vii) all liabilities related to, but only to the extent associated with or arising out of the dollar-for-dollar credit against the Asset Purchase Price applicable to the We Owes (which credit shall be provided by Sellers to Purchaser at Closing). The term “We Owes” as used in this Agreement refers to the obligations made by a Seller to a customer to deliver to the customer additional products or services not available or delivered at the time of the sale of the vehicle. Sellers shall deliver to Purchaser at Closing a schedule of all such obligations along with reasonable supporting documentation substantiating the We Owes and Sellers’ projected actual cost to perform the same. Following Closing, Purchaser shall perform the obligations of the applicable Seller on We Owes pertaining to vehicles sold or serviced by such Seller prior to Closing. To the extent Purchaser has not received credit against the Asset Purchase Price for We Owe work, then if Purchaser performs the same and makes a claim therefor against Sellers within one (1) year following with Closing Date (which claim shall be in writing and supported by reasonable documentation evidencing the We Owes as to which such claim is made, and the actual costs incurred by Purchaser in performing the same), Sellers shall reimburse Purchaser within thirty (30) days after such written demand for the actual costs incurred by Purchaser in performing such We Owes; andany action,
Appears in 1 contract
Samples: Asset Purchase Agreement
Assumed and Excluded Liabilities. (a) Except as otherwise specifically provided (i) with respect to matters set forth in this Section 4.1paragraph 3.01(b) hereof; or (ii) to the extent that Buyer is entitled to indemnification in respect thereof pursuant to Article XIII hereof, Purchaser is not assuming any Liability in which case, for purposes of any Sellersaid Article XIII, or the Business of any kind or nature, absolute or contingent, known or unknown, and whether or not Purchaser is a successor to such Liability by operation of Applicable Law, including without limitation, liabilities and obligations of any Sellershall be deemed not to be assumed by Buyer hereunder, or at the Business with respect to customer or employee obligations, workers’ compensation, occupational injury or disease, pension and other benefits, product liability, warrant, or a violation of any federal, state or local law, regulation or ordinance (the “Excluded Liabilities”). At Closing, Purchaser shall Buyer will assume and agree to discharge and perform when due only the following liabilities and obligations which relate to the Purchased Assets and are not paid or discharged at or before the Closing:
(i) liabilities reflected on the Audited Financial Statements, minus any such liabilities or obligations that have been, or are, paid or discharged by Seller between December 31, 1995 and the Closing Date, and liabilities or obligations incurred after December 31, 1995 and prior to the Closing Date to the extent included in the determination of Sellersthe Closing Net Book Assets;
(ii) liabilities and obligations of Seller relating to the Purchased Assets to be performed after the Closing arising from the Material Contracts, the Leases or any other lease, contract or agreement relating to the Purchased Assets and not required to be disclosed on Schedule 6.11 or Schedule 6.12 hereto other than liabilities and obligations arising from breaches thereof prior to the Closing; and
(iii) liabilities and obligations of Seller relating to Transferred Employees including, without limitation, employee benefits relating to Transferred Employees, to the extent included in the determination of the Closing Net Book Assets. The liabilities and obligations hereinabove listed, and to be assumed by Buyer, are hereinafter referred to collectively as the same shall exist at Closing (the “"Assumed Liabilities”):".
(ab) all Liabilities under Notwithstanding the provisions of paragraph 3.01(a), there are expressly excluded from the Assumed Contracts Liabilities, and Buyer is not assuming, and shall not be deemed to have assumed, and the determination of the Closing Net Book Assets shall not reflect, any of the following liabilities and obligations:
(i) liabilities for Taxes incurred by Seller in connection with the operation of the Purchased Assets prior to and up to and including the Closing Date or incurred by Seller with respect to any of the transactions contemplated hereby, except to the extent included in the determination of the Closing Net Book Assets;
(ii) liabilities and obligations of Seller arising from a breach by Seller before the Closing of any contract or agreement relating to the Purchased Assets, including, without limitation, the Real Estate Leases) Material Contracts and the Construction Documents Leases;
(iii) liabilities and obligations arising under any contract or agreement, including, without limitation, the Material Contracts and the Leases, if the rights of Seller are, for any reason, not transferred to, or the benefits thereunder are not otherwise made available to, Buyer at the Closing. The provisions of this clause (iii) shall not limit Seller's liability for the failure to transfer any of the Material Contracts or the Leases as required herein;
(iv) any liability or obligation, under the Collective Bargaining Agreements or otherwise, in respect of severance or separation pay or allowances for employees of Seller whose employment with Seller was terminated on or after Closingprior to the Closing Date; and
(v) liabilities and obligations arising out of any action, so long as such Liability, suit or its incurrence or existence, does not arise or relate to a breach or failure ofproceeding based upon an event occurring, or a default underclaim arising, any term, condition or provision of such Assumed Contract or Construction Document that occurred prior up to and including the Closing;
(b) the remaining motor vehicle repair work with respect to the Work in Progress;
(c) Liabilities to discharge and satisfy the We Owes, but only to the extent of the dollar-for-dollar credit against the Asset Purchase Price applicable to the We Owes (which credit shall be provided by Sellers to Purchaser at Closing)Closing Date. The term “We Owes” as used in this Agreement refers liabilities and obligations hereinabove listed are to the obligations made be retained by a Seller to a customer to deliver to the customer additional products or services not available or delivered at the time of the sale of the vehicle. Sellers shall deliver to Purchaser at Closing a schedule of all such obligations along with reasonable supporting documentation substantiating the We Owes and Sellers’ projected actual cost to perform the same. Following Closing, Purchaser shall perform the obligations of the applicable Seller on We Owes pertaining to vehicles sold or serviced by such Seller prior to Closing. To the extent Purchaser has not received credit against the Asset Purchase Price for We Owe work, then if Purchaser performs the same and makes a claim therefor against Sellers within one (1) year following with Closing Date (which claim shall be in writing and supported by reasonable documentation evidencing the We Owes as to which such claim is madeSeller, and are hereinafter referred to collectively as the actual costs incurred by Purchaser in performing the same), Sellers shall reimburse Purchaser within thirty (30) days after such written demand for the actual costs incurred by Purchaser in performing such We Owes; and"Excluded Liabilities".
Appears in 1 contract
Assumed and Excluded Liabilities. Except as otherwise specifically provided in this Section 4.1, Purchaser is not assuming any Liability (a) The "Assumed Liabilities" are all liabilities and obligations (other than to the extent such liabilities or obligations are Excluded Liabilities) relating to or arising out of any Seller, the Business or the Business of any kind Purchased Assets (whether known or natureunknown, asserted or unasserted, absolute or contingent, known accrued or unknownunaccrued, liquidated or unliquidated, and whether due or not Purchaser is a successor to such Liability by operation of Applicable Lawbecome due), including without limitation, including:
(i) all liabilities and obligations of any Seller, the Seller to the extent relating to or arising out of the Business with respect to customer or employee obligationsas of the Closing Date including, workers’ compensationbut not limited to, occupational injury or disease, pension and other benefits, product liability, warrant, or a violation of any federal, state or local law, regulation or ordinance (the “Excluded Liabilities”). At Closing, Purchaser shall assume and agree to discharge and perform when due only the following all liabilities and obligations reflected or reserved for on the Balance Sheet and any liabilities and obligations incurred in the ordinary course of Sellersbusiness since the date of the Balance Sheet, as except to the same shall exist at Closing (extent paid or discharged since the “Assumed Liabilities”):date thereof;
(aii) all Liabilities liabilities and obligations arising under or relating to the Assumed Contracts Contracts;
(includingiii) all liabilities and obligations to the extent arising out of or relating to services provided or products designed, without limitationmanufactured, sold, serviced or repaired in connection with the Real Estate LeasesBusiness, including all warranty and product liabilities relating thereto;
(iv) all liabilities and obligations arising out of or relating to the Employees (including the employment, compensation and termination of employment thereof) and the Construction Documents arising on any related employee benefits or after Closing, so long employee benefits plans or programs as such Liability, or its incurrence or existence, does not arise or relate to a breach or failure of, or a default under, any term, condition or provision of such Assumed Contract or Construction Document that occurred prior provided in Article VII hereof;
(v) all liabilities and obligations to the Closing;extent relating to the ownership or operation of the Business or any Purchased Assets, arising out of or relating to any event, transaction, condition, practice, Release or occurrence, including any liabilities resulting from violations of Environmental Laws, in connection with the generation, use, handling, presence, treatment, storage, transportation, disposal or Release of any Hazardous Materials; and
(vi) all liabilities and obligations arising after the Closing in connection with the conduct or operation of the Business or the use or ownership of the Purchased Assets.
(b) The Buyer will not assume or become responsible for, and will not be deemed to have assumed or to have become responsible for any liabilities, debts or obligations of the remaining motor vehicle repair work Seller, whether or not related to the Business, other than as set forth in Section 2.3(a) (collectively, the "Excluded Liabilities"), and the Buyer will not be responsible for any liabilities, debts or obligations of the Seller, whether or not related to Business, relating to or arising out of any of the following (each of which will also constitute an Excluded Liability):
(i) any liability, debt or obligation to the extent arising out of or relating to any Excluded Asset;
(ii) any liability, debt or obligation of the Seller with respect to Taxes arising in connection with the Work in ProgressBusiness or the Purchased Assets, or any of the Ancillary Documents, for any taxable period or ratable portion thereof ending on or prior to the Closing Date;
(ciii) Liabilities any liability or obligation of the Seller or its Affiliates or predecessors arising out of the ownership or operation of the Business at the York Center Premises relating to discharge and satisfy any event, transaction, condition, practice, Release or occurrence at the We OwesYork Center Premises, but only including any liabilities resulting from violations of Environmental Laws, in connection with the generation, use, handling, presence, treatment, storage, transportation, disposal or Release of any Hazardous Materials;
(iv) any liability, debt or obligation of the Seller arising pursuant to the extent Letter Agreement; and
(v) any liability, debt or obligation of the dollar-for-dollar credit against the Asset Purchase Price applicable to the We Owes (which credit shall be provided by Sellers to Purchaser at Closing). The term “We Owes” as used in Seller arising under this Agreement refers to the obligations made by a Seller to a customer to deliver to the customer additional products or services not available or delivered at the time of the sale of the vehicle. Sellers shall deliver to Purchaser at Closing a schedule of all such obligations along with reasonable supporting documentation substantiating the We Owes and Sellers’ projected actual cost to perform the same. Following Closing, Purchaser shall perform the obligations of the applicable Seller on We Owes pertaining to vehicles sold or serviced by such Seller prior to Closing. To the extent Purchaser has not received credit against the Asset Purchase Price for We Owe work, then if Purchaser performs the same and makes a claim therefor against Sellers within one (1) year following with Closing Date (which claim shall be in writing and supported by reasonable documentation evidencing the We Owes as to which such claim is made, and the actual costs incurred by Purchaser in performing the same), Sellers shall reimburse Purchaser within thirty (30) days after such written demand for the actual costs incurred by Purchaser in performing such We Owes; andAgreement.
Appears in 1 contract
Assumed and Excluded Liabilities. Except for (x) those categories of current liabilities set forth on Exhibit B hereto as otherwise specifically of the Closing Date, (y) obligations arising under Assumed Contracts on or after the Closing Date and (z) liabilities and obligations arising under the 401(k) Plan Spinoff Agreement to the extent (and only to the extent) provided for in this Section 4.1said 401(k) Plan Spinoff Agreement (collectively, Purchaser is the "ASSUMED LIABILITIES"), Buyer shall not assuming any Liability of any Seller, assume or the Business of any kind or nature, absolute or contingent, known or unknownbe liable for, and whether or not Purchaser is a successor to such Liability by operation of Applicable LawSeller shall retain, including without limitationdischarge and perform, any and all liabilities and obligations of any Seller, or the Business with respect to customer or employee obligations, workers’ compensation, occupational injury or disease, pension and other benefits, product liability, warrant, or a violation of any federal, state or local law, regulation or ordinance (the “Excluded Liabilities”). At Closing, Purchaser shall assume and agree to discharge and perform when due only the following liabilities and obligations of Sellers, as the same shall exist at Closing (the “Assumed Liabilities”):
(a) all Liabilities under the Assumed Contracts (including, without limitation, the Real Estate Leasesfollowing (collectively, the "EXCLUDED LIABILITIES"):
(a) and the Construction Documents Any liability, expense or cost relating to claims against Seller for personal injury or property damage arising on from or after Closingrelating to, so long as such Liability, in whole or its incurrence or existence, does not arise or relate to a breach or failure of, or a default underin part, any term, condition or provision of such Assumed Contract or Construction Document that occurred event occurring prior to the Closing;
(b) the remaining motor vehicle repair work with respect Any liability or obligation of Seller arising from or relating to the Work in Progressservices provided, goods produced, sold or distributed by Seller prior to Closing;
(c) Liabilities Any liability or obligation of Seller for loans or other debts of Seller;
(d) Any liability or obligation of Seller under any real estate lease or in relation to discharge any real estate owned or operated by Seller (other than leases included within Assumed Contracts for the liabilities or obligations accruing after the Closing);
(e) Except as set forth on Exhibit B hereto, any liability or obligation of Seller to any employee of Seller for any stay bonuses, severance, or related items to be paid to any key employees, agents and satisfy executive officers of Seller;
(f) Any obligation of Seller for Taxes (as hereinafter defined) (including interest and penalties) imposed by any state, federal or other entity arising from, on, or out of the We Owesownership, use or operation of the Acquired Assets prior to Closing, or arising from, on, or out of the sale or conveyance by Seller of the Acquired Assets pursuant to this Agreement other than those Taxes arising from the conveyance of the Acquired Assets to Buyer which by applicable law are assessed against the purchaser of such assets (which such Taxes shall be included in the Assumed Liabilities);
(g) Any obligation of Seller for expenses incurred in connection with the sale or conveyance of the Acquired Assets pursuant to this Agreement, including, without limitation, the fees and expenses of attorneys, accountants, brokers and other advisors and agents;
(h) Any liability related to rent for the vacated space on the twelfth floor of the Newsweek building in New York, New York;
(i) Any liability related to the union and employment discrimination claims related to the merger or consolidation of Seller's operating units or divisions prior to the Closing Date;
(j) Any environmental liability occurring before the Closing;
(k) Any OSHA-related liabilities, including, but only not limited to, OSHA Complaint No. 203439302 (OSHA Complaint No. 203439302) incurred or occurring as a result of the operations of the Business prior to the Closing Date;
(l) Any obligation or liability of Seller for health benefits, welfare benefits, pension or retirement benefits which have accrued prior to Closing; except for those items included within the classification of accrued expenses on Exhibit B;
(m) Any liability of Buyer related to the "Plan" (as defined in the 401(k) Plan Spinoff Agreement) except to the extent provided in such 401(k) Plan Spinoff Agreement.
(n) Any other liability, contract, commitment or obligation (whether known or unknown, fixed or contingent, liquidated or unliquidated) arising out of or relating to the ownership, use or operation of the dollar-for-dollar credit against Acquired Assets prior to Closing and not included within the Asset Purchase Price applicable Assumed Liabilities; and
(o) Any liability or obligation of Seller arising under this Agreement. Within a reasonable time prior to Closing (as hereinafter defined), Buyer shall have the right to review the proposed Assumed Liabilities of Seller and refuse to be responsible for any Assumed Liabilities that are unrelated to the We Owes (which credit shall be provided by Sellers to Purchaser at Closing)Business. The term “We Owes” as used in this Agreement refers to the obligations made by a Seller to a customer to deliver to the customer additional products or services not available or delivered at the time of the sale of the vehicle. Sellers shall deliver to Purchaser at Closing a schedule of all such obligations along with reasonable supporting documentation substantiating the We Owes Buyer hereby agrees and Sellers’ projected actual cost covenants to perform the same. Following Closingand discharge and fully indemnify Seller from all costs, Purchaser shall perform the obligations of the applicable Seller on We Owes pertaining to vehicles sold or serviced by such Seller prior to Closing. To the extent Purchaser has not received credit against the Asset Purchase Price for We Owe work, then if Purchaser performs the same expenses and makes a claim therefor against Sellers within one (1) year following with Closing Date (which claim shall be in writing and supported by reasonable documentation evidencing the We Owes as to which such claim is made, and the actual costs incurred by Purchaser in performing the same), Sellers shall reimburse Purchaser within thirty (30) days after such written demand for the actual costs incurred by Purchaser in performing such We Owes; anddamages relating
Appears in 1 contract
Assumed and Excluded Liabilities. Except as otherwise specifically provided in this Section 4.1On the Closing Date, Purchaser is not assuming any Liability Buyer shall execute and deliver to Seller the Xxxx of any SellerSale and the Assignment and Assumption Agreement pursuant to which Buyer shall assume and agree to pay, or perform and discharge when due, all the liabilities and obligations of Seller arising out of the U.S. Business of any kind or nature, absolute or whether absolute, contingent, known accrued or unknownotherwise, and whether arising before or not Purchaser is a successor to such Liability by operation of Applicable Lawafter the Closing including, including without limitation, all liabilities (i) for Tax items assumed by Buyer under Section 2.3 and obligations of any Seller(ii) under the Assigned Contracts (collectively, or the Business with respect to customer or employee obligations"Assumed Liabilities"); provided, workers’ compensationhowever, occupational injury or disease, pension and other benefits, product liability, warrant, or a violation of any federal, state or local law, regulation or ordinance (that the “Excluded Liabilities”). At Closing, Purchaser Assumed Liabilities shall assume and agree to discharge and perform when due only in no event include the following liabilities and obligations of Sellers, as the same shall exist at Closing (the “Assumed "Excluded Liabilities”"):
(a) all Liabilities any liability for claims under the Assumed Contracts (including, without limitation, the Real Estate Leases) and the Construction Documents arising health insurance plans of Seller for covered Division Employees with respect to medical services rendered on or after Closing, so long as such Liability, or its incurrence or existence, does not arise or relate to a breach or failure of, or a default under, any term, condition or provision of such Assumed Contract or Construction Document that occurred prior to the ClosingClosing (but not in respect of any sick leave or disability benefits pertaining to any period after the Closing Date regardless of when the relevant illness or condition arose);
(b) the remaining motor vehicle repair work with respect any liability for Taxes for any period of any length ending on or prior to the Work in ProgressClosing Date, excluding (i) Tax liabilities included as liabilities on the Closing Balance Sheet and (ii) the Taxes that are the responsibility of Buyer pursuant to Section 2.3;
(c) Liabilities all liabilities and obligations of Seller for costs and expenses incurred in connection with the preparation and negotiation of this Agreement and the Other Agreements or the consummation of the transactions contemplated by this Agreement and the Other Agreements;
(d) all liabilities and obligations of Seller under this Agreement or the Other Agreements;
(e) any liability in respect of litigation, arbitration or governmental investigations pending against Seller in respect of the U.S. Business on or prior to discharge the Closing Date including, without limitation any liability arising out of the matters disclosed in Schedule 3.12 hereto;
(f) any liability in respect of the Nilssen Litigation, subject to Section 5.4;
(g) except pursuant to the Ancillary Agreements, all liabilities and satisfy obligations of Seller (i) relating to any of the We OwesExcluded Assets, (ii) otherwise unrelated or to the extent unrelated to the Assets or the Business or (iii) arising from the disposition by the Seller of any business or part thereof at any time or from any facility closed by the Business before the Closing Date;
(h) liability for claims made after the Closing Date for refunds (other than with respect to warranty claims), rebates, discounts, promotional credits and similar sales concessions in respect of sales made prior to the Closing Date which in the aggregate exceed the reserve for such items on the Closing Balance Sheet, but only to the extent that written notice of such claims shall have been delivered to MagneTek prior to the first anniversary of the dollar-for-dollar credit against Closing Date;
(i) all indebtedness for borrowed money of Seller or any Company except as set forth on Schedule 1.3(h) hereof (the Asset Purchase Price applicable "Assumed Debt");
(j) liability for (x) warranty claims (but excluding any special customer concessions) made after the Closing Date for service, repair, replacement, and similar work required under the Business' written warranties with respect to products sold or services provided on or prior to the We Owes (Closing Date which credit shall be provided by Sellers to Purchaser at Closing). The term “We Owes” as used in this Agreement refers the aggregate exceed the warranty reserve on the Closing Balance Sheet, but only to the obligations made by a Seller extent written notice of such claims shall have been delivered to a customer to deliver MagneTek within the thirty-month period following the Closing Date or (y) workers' compensation claims for injuries incurred on or prior to the customer additional products or services not available or delivered at the time of the sale of the vehicle. Sellers shall deliver to Purchaser at Closing a schedule of all such obligations along with reasonable supporting documentation substantiating the We Owes and Sellers’ projected actual cost to perform the same. Following Closing, Purchaser shall perform the obligations of the applicable Seller on We Owes pertaining to vehicles sold or serviced by such Seller prior to Closing. To the extent Purchaser has not received credit against the Asset Purchase Price for We Owe work, then if Purchaser performs the same and makes a claim therefor against Sellers within one (1) year following with Closing Date (which claim I) to the extent written notices of such claims shall be have been delivered to MagneTek within the two-year period following the Closing Date and (II) to the extent that written notices of such claims are delivered to MagneTek after the foregoing two-year period following the Closing Date only to the extent that Seller receives proceeds from insurance policies of Seller covering such claims;
(k) liability for product liability claims for injuries, property damage or other losses in writing respect of any product manufactured by Seller on or prior to the Closing Date (I) for all such injuries, property damage or other Losses that occur on or prior to the Closing Date and supported (II) for all such injuries, property damage or other Losses that occur after the Closing Date, but only to the extent written notice of such claims shall have been delivered to MagneTek within the thirty-month period following the Closing Date;
(l) liability for warranty claims (but excluding any special customer concessions) in respect of products sold by reasonable documentation evidencing the We Owes Division but manufactured by MagneTek Italy, as to which such claim is made, Buyer will perform the warranty work and be entitled to reimbursement for material and labor costs at commercially reasonable rates;
(m) all liabilities or other obligations of Seller to any of its Affiliates except as provided in the actual costs incurred by Purchaser Ancillary Agreements or as accrued as payables on the Closing Balance Sheet;
(n) except as specifically set forth in performing the sameArticle IX hereof or pursuant to any Assigned Contracts set forth on Schedule 1.3(m), Sellers shall reimburse Purchaser within thirty all liabilities and obligations of Seller to pay severance, termination pay, redundancy pay, pay in lieu of notice, accrued vacation pay, compensation or other benefits accrued or incurred on or prior to the Closing Date (30including, but not limited to any Stay and Pay Agreements) days after such to any current or former employee of Seller, including those employees whose employment is terminated in connection with the consummation of the transactions contemplated by this Agreement and all liabilities resulting from the termination of employment of employees of Seller on or prior to the Closing Date, including without limitation any liabilities of Seller pursuant to agreements and plans identified in Schedules hereto or any liabilities, responsibilities or obligations with respect to any Seller Plan;
(o) any liability for payment of checks written demand for by Seller on or prior to the actual costs incurred by Purchaser in performing such We OwesClosing Date related to the Business; and
(p) all liabilities, known or unknown, arising under or relating to any Environmental Law, arising at or related to any real property or facilities other than the Company Property, other than liabilities resulting from the migration of Hazardous Materials from a Company Property to any real property or facility other than a Company Property, which arise out of or relate to (x) the U.S. Business or any activities or operations occurring or conducted in connection with the U.S. Business and (y) either (i) violations of or liability under any Environmental Law occurring or existing on or prior to the Closing Date, or (ii) the disposal, treatment, storage, transportation, arrangement for transportation, discharge, injection, spilling, leaking, emission, dumping, recycling or release of any Hazardous Material by Seller or any third-party on behalf of Seller.
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