Assumed Obligations. At the Closing, subject to the limitation set forth in Section 4(c), Buyer shall assume the following liabilities and obligations (the "Assumed Obligations") of Sellers: (i) post-Petition trade payables and liabilities incurred in the Ordinary Course of Business consistent with present practice in Sellers' chapter 11 cases (including an aggregate of up to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paid, but excluding (x) any such professionals' fees in excess of such amount and (y) any amounts payable to Deloitte Touche under Section 3 of this Agreement); (ii) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not to exceed $2,593,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing; (iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d); (iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing; (v) the liabilities and obligations of Sellers under the Assigned Contracts that have accrued as of the Closing Date, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary to prevent such excess) and liabilities and obligations of Sellers under purchase orders and supply contracts; and (vi) other post-Petition liabilities and obligations that have accrued as of the Closing Date in the Ordinary Course of Business, including but not limited to employee-related obligations such as 401(k), pension, health insurance, etc. (but not with respect to employees of SCMI).
Appears in 1 contract
Assumed Obligations. At the Closing, except as provided in Section 2.3 and/or in Section 2.5 hereof, Purchaser shall assume, and agree to pay, perform, fulfill and discharge the following additional obligations of the Seller:
(a) Those obligations which are required to be performed after the Closing Date under the Assumed Contracts from and after the date of the Closing; provided, however, Seller shall pay any amounts due to any and all non-Seller parties to any Assumed Contracts and Assumed Leases in respect of any cure amount as established by the Sale Order ("Cure Amount") under Section 365(b) of the Bankruptcy Code or otherwise, which Cure Amount, together with all deficiencies in Lease Deposits under the Assumed Leases, shall be itemized by Seller prior to Closing as Schedule 2.4(a) hereto, subject to the limitations contained in Section 2.2(b)(iv) hereof, and shall restore any deficiencies in Lease Deposits under the Assumed Leases;
(b) Those obligations relating to accrued but unused vacation and sick leave of Hired Employees of Seller (or any of them) hired by Purchaser at Closing; provided, however, following the Closing, subject to Section 7.2 hereof, Purchaser may establish such policies and procedures in respect of Hired Employees vacation and other employee-related policies post-Closing as Purchaser shall deem appropriate, in its discretion; and
(c) Gift certificates issued by Seller in the limitation ordinary course prior to the Closing, which have not yet been redeemed and which, pursuant to applicable law, are required to be honored by issuer. The amounts set forth in this Section 4(c), Buyer shall assume the following liabilities and obligations 2.4(a) - (c) are collectively defined herein as the "Assumed Obligations.") of Sellers:
(i) post-Petition trade payables and liabilities incurred in the Ordinary Course of Business consistent with present practice in Sellers' chapter 11 cases (including an aggregate of up to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paid, but excluding (x) any such professionals' fees in excess of such amount and (y) any amounts payable to Deloitte Touche under Section 3 of this Agreement);
(ii) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not to exceed $2,593,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d);
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(v) the liabilities and obligations of Sellers under the Assigned Contracts that have accrued as of the Closing Date, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary to prevent such excess) and liabilities and obligations of Sellers under purchase orders and supply contracts; and
(vi) other post-Petition liabilities and obligations that have accrued as of the Closing Date in the Ordinary Course of Business, including but not limited to employee-related obligations such as 401(k), pension, health insurance, etc. (but not with respect to employees of SCMI).
Appears in 1 contract
Assumed Obligations. At the Closing, subject Purchaser shall assume, and agree to pay, perform, fulfill and discharge, the following obligations of Seller that relate to or arise out of the Purchased Assets (the “Assumed Obligations”). The Assumed Obligations shall include, but not be limited to, the following:
(a) Obligations which are required to be performed under the Contracts, Permits, Personal Property Leases and Intellectual Property, except where (i) such obligations are not fully disclosed in accordance with the Agreement or arise in contravention of this Agreement, or (ii) such obligations arise due to any breach of contract, breach of warranty, tort, infringement, or violation of Law or arose out of any Claim, provided, such breach, tort, infringement, violation or Claim arose out of events occurring prior to the limitation Closing, or (iii) the consent of any third party is required for the assignment of such Contract, Permit or Personal Property Lease and such consent has not been obtained;
(b) Obligations and liabilities set forth on the face of the balance sheet as of June 30, 2006 included in the Financial Statements (rather than in any notes thereto), and all liabilities which have arisen after June 30, 2006 in the ordinary course of business of the Business; provided that such Assumed Obligations (i) do not include any Indebtedness; (ii) are reflected in the calculation of the Purchase Price; (iii) are fully disclosed to Buyer pursuant to this Agreement and do not arise in contravention of this Agreement; and (iv) do not relate to any breach of contract, breach of warranty, tort, infringement, or violation of Law or arise out of any Claim,; it being understood that the number of shares of Buyer Common Stock to be delivered to the LLC pursuant to Section 2.6 shall be reduced in the manner specified in Section 2.6 and 2.7 to the extent that the value of Qualified Liabilities exceeds zero; and
(c) Obligations arising after the Closing Date with respect to Transferred Employees as set forth in Section 4(c), Buyer shall assume the following liabilities and obligations (the "Assumed Obligations") of Sellers:
(i) post-Petition trade payables and liabilities incurred in the Ordinary Course of Business consistent with present practice in Sellers' chapter 11 cases (including an aggregate of up to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paid, but excluding (x) any such professionals' fees in excess of such amount and (y) any amounts payable to Deloitte Touche under Section 3 of this Agreement);
(ii) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not to exceed $2,593,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d);
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(v) the liabilities and obligations of Sellers under the Assigned Contracts that have accrued as of the Closing Date, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary to prevent such excess) and liabilities and obligations of Sellers under purchase orders and supply contracts; and
(vi) other post-Petition liabilities and obligations that have accrued as of the Closing Date in the Ordinary Course of Business, including but not limited to employee-related obligations such as 401(k), pension, health insurance, etc. (but not with respect to employees of SCMI)6.1.
Appears in 1 contract
Samples: Asset Purchase Agreement (Millennium Biotechnologies Group Inc)
Assumed Obligations. At Notwithstanding Section 1.5, on the Closing, subject to the limitation set forth in Section 4(c), Buyer Closing Date Purchaser shall assume and satisfy the following liabilities and or obligations (the "Assumed ObligationsASSUMED OBLIGATIONS") of Sellers:):
(i) post-Petition trade payables and liabilities incurred in the Ordinary Course obligations under the Plan of Business consistent with present practice in Sellers' chapter 11 cases (including an aggregate of up Reorganization to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paid, but excluding (x) any such professionals' fees in excess of such amount and (y) any amounts payable to Deloitte Touche under Section 3 of this Agreement)pay all Allowed Administrative Expenses;
(ii) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not the obligations under the Plan of Reorganization to exceed $2,593,000, to the extent approved by the Bankruptcy Court and not satisfied before Closingpay all Allowed Priority Tax Claims;
(iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d)the Plan of Reorganization to pay all Allowed Miscellaneous Priority Claims;
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not the obligations under the Plan of Reorganization to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closingpay all Allowed Miscellaneous Secured Claims;
(v) the liabilities obligations under the Plan of Reorganization to pay the Secured Claim Cash Distribution;
(vi) the obligations of Purchaser set forth in Sections 2.02, 5.01(f), 5.03, 10.01, 10.04, 10.05, 12.07 and 14.05 of the Plan of Reorganization;
(vii) all indemnities, liabilities, and obligations of Sellers Seller and Purchaser under the Assigned Contracts that have accrued Plan of Reorganization;
(viii) all sales and use taxes, documentary and other stamp taxes, deed taxes, transfer taxes, intangible taxes and other similar taxes imposed upon or in connection with, or required to be paid as a result of, the sale and transfer of the Closing Dateassets of the Seller to Purchaser, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary any such taxes are required to prevent such excessbe paid after giving effect to the provisions of Section 1146(c) and liabilities and obligations of Sellers under purchase orders and supply contractsthe Bankruptcy Code; and
(viix) other post-Petition liabilities Purchaser further shall assume and obligations that have accrued as agree to perform and observe each and all of the Closing Date in provisions of the Ordinary Course Plan of BusinessReorganization and the Employee Benefit Plans Assignment and Assumption Agreement attached hereto as Exhibit G applicable to Purchaser and each and all of the obligations and undertakings of Seller under the Plan of Reorganization, including but the releases in Section 12.04 and Section 12.09 thereof, as fully as Seller is bound thereby. Purchaser shall not limited assume or be obligated to employee-related obligations such as 401(k)pay, pensionperform, health insurance, etc. (but fulfill or discharge any Claim or any other liability or obligation of Seller not with respect expressly assumed by Purchaser pursuant to employees of SCMI)this Section 1.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wherehouse Entertainment Inc)
Assumed Obligations. At the Closing, subject to the limitation set forth in Section 4(c), Buyer shall assume the following liabilities and obligations (the "Assumed Obligations") of Sellers:
(i) post-Petition trade payables and liabilities incurred in the Ordinary Course of Business consistent with present practice in Sellers' chapter 11 cases (including an aggregate of up to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paid, but excluding (x) any such professionals' fees in excess of such amount and (y) any amounts payable to Deloitte Touche under Section 3 of this Agreement);
(ii) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not to exceed $2,593,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d);
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(v) the liabilities and obligations of Sellers under the Assigned Contracts that have accrued as As of the Closing Date, including all Cure Amounts with respect thereto on the terms and conditions set forth in this Agreement, Purchaser shall assume and agree to discharge, perform and pay only the following obligations (except for Cure Amounts the payment of which would cause “Assumed Obligations”) as and when due:
(a) the Assumed Liabilities and DIP Payments Payables, except that if the aggregate amount of Assumed Payables to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary to prevent such excess) and liabilities and obligations of Sellers under purchase orders and supply contracts; and
(vi) other post-Petition liabilities and obligations that have accrued be assumed by Purchaser as of the Closing Date exceeds $2,250,000, then Purchaser shall not be required to assume those accounts payable and accrued expenses in excess of $2,250,000 (and Purchaser, in its sole discretion, may decide which of such accounts payable and accrued expenses it desires not to assume so long as the aggregate amount of accounts payable and accrued expenses assumed by Purchaser is not less than $2,250,000); for purposes of clarity, the parties acknowledge that any such accounts payable and accrued expenses not assumed pursuant to this Section 2.3.2(a) shall not be included in the Ordinary Course calculation of BusinessClosing Net Assets;
(b) those obligations arising after the Closing Date under (i) the Listed Agreements and (ii) under all other Contracts of Seller which are not required to be listed on Schedule 3.16, including but except that (A) Purchaser shall not limited assume any obligation or liability to employee-related obligations such as 401(k)the extent that it arises out of or relates to, pensiondirectly or indirectly, health insurance, etc. any action or inaction of Seller on or prior to the Closing Date (but not other than the Assumed Warranty Obligations) and (B) with respect to employees monetary obligations pursuant to clause (b)(ii) of SCMIthis sentence, if the aggregate amount of such Contracts exceeds $100,000, then Purchaser shall not be required to assume those Contracts in excess of $100,000 (and Purchaser, in its sole discretion, may decide which of such Contracts it desires not to assume so long as Purchaser has assumed Contracts not set forth on Schedule 3.16 totaling at least $100,000 in the aggregate); and
(c) the Assumed Warranty Obligations as provided for in Section 6.1 hereof.
Appears in 1 contract
Assumed Obligations. At Upon the Closing, terms and subject to the limitation set forth in Section 4(c)conditions of this Agreement, Buyer shall at the Closing Time, MEGTEC and any Designated Purchaser will assume and will thereafter pay, perform or discharge only the following liabilities and obligations of Balxxxx Xxkel and Balxxxx Xxxx xxlating to the Roll Handling Business and no others (collectively, the "Assumed Obligations") of Sellers:):
(ia) post-Petition trade payables All liabilities and liabilities incurred obligations of Balxxxx Xxkel and Balxxxx Xxxx xxr payment of accounts payable of the Roll Handling Business (collectively, the "Accounts Payable"), but only to the extent and in the Ordinary Course of Business consistent with present practice amount included therefor in Sellers' chapter 11 cases (including an aggregate of up to $1,250,000 for court-retained professionals' fees the Final Statement and reimbursement of Sellers for court-approved which amounts already paid, but excluding (x) any such professionals' fees in excess of such amount and (y) shall not include any amounts payable to Deloitte Touche under Section 3 Balxxxx Xxchnology or any of this Agreement)its Affiliates;
(iib) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not to exceed $2,593,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d);
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(v) the All liabilities and obligations of Sellers under the Assigned Contracts that have Balxxxx Xxkel and Balxxxx Xxxx xxr payment of accrued as expenses of the Closing DateRoll Handling Business (collectively, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000"Accrued Expenses"), in which case Sellers shall make payments but only to the extent necessary and in the amount included therefor in the Final Statement and which amounts shall not include any amounts payable to prevent such excessBalxxxx Xxchnology or any of its Affiliates;
(c) and Subject to Section 8.07 hereof, all liabilities and obligations of Sellers under purchase orders Balxxxx Xxkel and supply contracts; and
Balxxxx Xxxx xxder the express terms of the Customer Contracts, Supplier Contracts, Other Contracts, Personal Property Leases and Real Estate Leases, but only to the extent first becoming due after the Closing Time but excluding, without limitation: (vii) other post-Petition all liabilities and obligations that have accrued as of the Closing Date in the Ordinary Course of Business, including but under any contract agreement or commitment which was not limited to employee-related obligations such as 401(k), pension, health insurance, etc. (but not with respect to employees of SCMI).should have been) listed
Appears in 1 contract
Samples: Asset and Share Purchase Agreement (Baldwin Technology Co Inc)
Assumed Obligations. At Subject to and upon all of the terms and conditions of this Agreement, at the Closing, subject to the limitation set forth in Section 4(c), Buyer Purchaser shall assume and agree to pay, perform and discharge the following obligations and liabilities and obligations of Seller (the "Assumed ObligationsASSUMED OBLIGATIONS") of Sellers:):
(i) post-Petition trade payables the obligations of Seller to perform the Scheduled Contracts specifically set forth on, and liabilities incurred attached to, SCHEDULE 2.1(d) to the extent that the Scheduled Contracts have not been performed at the time of the Closing, are not in default and have been duly transferred, assigned or consented to, as the Ordinary Course of Business consistent with present practice in Sellers' chapter 11 cases (including an aggregate of up to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paidcase may be, but excluding (x) any such professionals' fees in excess of such amount and (y) any amounts payable to Deloitte Touche under Section 3 of this Agreement)if necessary;
(ii) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not Purchaser's portion of any ad valorem or similar Taxes to exceed $2,593,000, be prorated pursuant to the extent approved by the Bankruptcy Court and not satisfied before ClosingSECTION 2.5(c);
(iii) key employee retention bonuses approved the liabilities of Seller, if any, represented by customer deposits or similar prepaid customer accounts, in each case, only to the Bankruptcy Court extent that such items are (i) reflected in an amount not to exceed $750,000, the Most Recent Financial Statements or (ii) incurred in the ordinary course of business between the Most Recent Fiscal Month End and obligations under employee Contracts set forth on SCHEDULE 7(d)the Closing;
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000the obligation of Seller under the Amended and Restated Promissory Note dated as of October 1, 1999, payable by Seller to the extent approved by the Bankruptcy Court and not satisfied before Closingorder of Shareholder;
(v) the liabilities and obligations accounts payable of Sellers under the Assigned Contracts that have accrued as of Seller at the Closing Date, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary to prevent that such excessaccounts payable are (i) reflected in the Most Recent Financial Statements or (ii) incurred in the ordinary course of business between the Most Recent Fiscal Month End and liabilities and obligations of Sellers under purchase orders and supply contractsthe Closing; and
(vi) the liabilities of Seller, if any, represented by accrued expenses for utilities, professional fees (other post-Petition liabilities and obligations that have accrued as of than the Closing Date in the Ordinary Course of Business, including but not limited to employee-related obligations such as 401(kTransaction Expenses), pension, wages and bonuses and employee health insurance, etc. in each case, only to the extent that such accrued expense items are (but not with respect to employees i) reflected in the Most Recent Financial Statements or (ii) incurred in the ordinary course of SCMI)business between the Most Recent Fiscal Month End and the Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ardis Telecom & Technologies Inc)
Assumed Obligations. (a) At the Closing, subject to or such later date not later than two business days after the limitation set forth Closing as Sellers shall designate, the Purchaser shall, or shall cause the Purchaser Designees to, pay (a) $3,255,000 which constitutes all amounts due under the Promissory Note dated September 29, 2000 in Section 4(c)favor of Executive Education Institute, Buyer shall assume the following liabilities and obligations Inc. (the "Assumed EEI Note"), (b) $2,400,000 which constitutes all amounts owed to the former stockholders of Strategic Interactive, Inc. pursuant to the terms of that certain Agreement and Plan of Merger dated October 26, 1998, as amended (the "SI Obligation"), and (c) $140,000 which is $70,000 to each of Xxxxxx Xxxxxx and Xxxxxx Xxxxx which constitutes all amounts due to each of them under their respective non-competition and non-disclosure agreements (the "EEI Non-Comp Obligations"). After the Closing, Purchaser shall cause Performance Solutions to pay that certain Promissory Note dated July 1, 1996 in the original principal amount of $1,095,529 with an outstanding principal balance as of December 31, 2002 of $675,211 (the "Xxxx Note") of Sellers:and the Deferred Compensation Obligation in accordance with their terms. From and after the Closing the Purchaser shall, or shall cause the Purchaser Designees to, timely pay, perform and discharge the Assumed Liabilities, and cause the Target Companies to timely pay, perform and discharge their respective obligations and liabilities, in accordance with their respective terms.
(ib) post-Petition trade payables and liabilities incurred in the Ordinary Course of Business consistent with present practice in Sellers' chapter 11 cases (including an aggregate of up On or prior to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paid, but excluding (x) any such professionals' fees in excess of such amount and (y) any amounts payable to Deloitte Touche under Section 3 of this Agreement);
(ii) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not to exceed $2,593,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d);
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(v) the liabilities and obligations of Sellers under the Assigned Contracts that have accrued as of the Closing Date, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary to prevent such excess) and liabilities and obligations of Sellers under purchase orders and supply contracts; and
(vi) other post-Petition liabilities and obligations that have pay all interest accrued as of through the Closing Date on the EEI Note, the SI Obligation and the EEI Non-Comp Obligations to the holders thereof.
(c) Purchaser shall, and shall cause the Purchaser Designees to, upon the request of either Seller, use reasonable efforts without expenditure of any more than a nominal amount to obtain from the third parties to Assumed Contracts the release (in the Ordinary Course form of Business, including but not limited to employee-related a novation or otherwise) of the Sellers from any and all obligations such as 401(k), pension, health insurance, etc. (but not with respect to employees of SCMI)and liabilities arising under the Assumed Contracts after the Closing Date.
Appears in 1 contract
Assumed Obligations. At the Closing, subject Xxxxxxxx and Xxxxx shall execute and deliver an Assignment & Assumption Agreement in form reasonably satisfactory to the limitation set forth in Section 4(cParties (the "Assignment & Assumption Agreement"), Buyer pursuant to which, among other transactions, Xxxxxxxx shall agree, effective as of the Closing, to assume and undertake to pay, perform and discharge the following liabilities and obligations of Xxxxx as of the Closing (collectively, the "Assumed Obligations") of Sellers), but no others:
(i1) postAll executory payment and performance obligations of Xxxxx which first arise or accrue following the Closing (A) under the WIP Contracts and the Other Work-Petition trade payables and liabilities incurred in-Process Contracts, (B) under the agreements identified on Exhibit E attached hereto, (C) under the bid proposals of Xxxxx identified --------- on Exhibit E that have been accepted by customers but which are not yet the --------- subject of definitive contracts, (D) under any contracts or agreements that may be entered into prior to the Closing by Xxxxx arising out of the bid proposals referred to in the Ordinary Course immediately preceding clause, (E) under such other agreements or bid proposals of Business consistent with present practice Xxxxx as shall be added to Exhibit B or E -------------- by mutual agreement of the Parties prior to the Closing (the contracts, agreements and bid proposals referred to in Sellers' chapter 11 cases clauses (including an aggregate of up B) through (E), above, being herein collectively referred to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paidas the "Other Agreements"), but excluding (xF) any such professionals' fees in excess of such amount the Plate Roll Contract, and (yG) the Corrosion Specialties Contract (but excluding, in the case of the contracts, agreements and bid proposals referred to in clauses (A) through (G), above, any amounts payable warranty or other similar obligations, or breach or default obligations, in either case arising out of work performed or failed to Deloitte Touche under Section 3 of this Agreement);
(ii) Sellers' accrued pre-Petition liabilities for vacationbe performed, payrollor materials, payroll Taxesgoods or services delivered or failed to be delivered, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not to exceed $2,593,000, by Xxxxx or any Subsidiary prior to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d);
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(v) the liabilities and obligations of Sellers under the Assigned Contracts that have accrued as of the Closing Date, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary to prevent such excess) and liabilities and obligations of Sellers under purchase orders and supply contractsbe "Retained Obligations" (as defined below)); and
(vi2) other post-Petition liabilities any and all obligations that have accrued as are expressly referred to in Clauses (i) through (xi) of the Closing Date in the Ordinary Course of Business, including but not limited to employee-related obligations such as 401(kSubsection (b), pensionbelow, health insuranceas Assumed Obligations. The Assignment & Assumption Agreement shall also serve to convey, etc. (but not with respect assign and transfer the intangible Assets to employees of SCMI)Xxxxxxxx as contemplated in Section 1.3.
Appears in 1 contract
Assumed Obligations. At On the Closing Date, Seller and the Subsidiaries shall assign, and Purchaser shall assume and agree to discharge after the Closing, subject to the limitation set forth in Section 4(c), Buyer shall assume following liabilities and obligations of Seller and/or any Subsidiary and only the following liabilities and obligations (collectively, the "Assumed Obligations"):
(a) all current liabilities of Sellers:the Subsidiaries with respect to the operation of any of the Hospitals on or prior to the Closing Date which are included in Net Working Capital, as determined pursuant to Sections 1.2 and 1.4;
(b) the Contracts, but only to the extent of the obligations arising thereunder with respect to events or periods after the Closing Date including, without limitation, any Contract not disclosed on Schedule 1.9(f) which requires payment by any Subsidiary during the remaining term of such instrument equal to or less than $10,000 (a "Minor Contract"), provided that the existence of such Minor Contract comes to Purchaser's attention no later than the date which is one year after the Closing Date.
(c) the Leases, including the capital lease obligations of Seller with respect to the Hospitals listed on Schedule 1.11(c), but only to the extent of the obligations arising thereunder with respect to events or periods after the Closing Date including, without limitation, any Lease not disclosed on Schedule 1.9(e) which requires payment by any Subsidiary during the remaining term of such Lease equal to or less than $10,000 (a "Minor Lease"), provided that the existence of such Minor Lease comes to Purchaser's attention no later than the date which is one year after the Closing Date.
(d) any and all obligations of Seller and the Subsidiaries under the Worker Adjustment and Retraining Notification Act ("WARN") with respect to the operation of the Hospitals as a result of (i) the consummation of the transaction contemplated by this Agreement (provided that Seller and the Subsidiaries have, with respect to the operation of the Hospitals, complied with WARN on or prior to the Closing Date), (ii) the acts of Purchaser or any affiliate of Purchaser after the Closing Date or (iii) Purchaser's breach of its covenant with respect to the Hired Employees as set forth in Section 5.3;
(e) the Sick Pay Amount and all accrued vacation and holiday pay liabilities of the Subsidiaries (and their respective affiliates) with respect to the Hired Employees; provided, however, if Seller or any Subsidiary satisfies any portion of such obligations and liabilities existing at the Closing by payment to a Hired Employee, then Purchaser shall reimburse Seller in the amount of such payment at Closing;
(f) all unpaid real and personal property taxes, if any, that are attributable to the Assets on or prior to the Closing Date, subject to the prorations provided in Section 1.8;
(g) all utilities being furnished to the Assets, subject to the prorations provided in Section 1.8;
(h) any tax liability of Seller or any Subsidiary (other than for income taxes) incurred as a result of the consummation of the transaction contemplated by this Agreement; and
(i) post-Petition trade payables any other obligations and liabilities incurred identified in the Ordinary Course of Business consistent with present practice in Sellers' chapter 11 cases (including an aggregate of up to $1,250,000 for court-retained professionals' fees and reimbursement of Sellers for court-approved amounts already paid, but excluding (x) any such professionals' fees in excess of such amount and (y) any amounts payable to Deloitte Touche under Section 3 of this Agreement);
(ii) Sellers' accrued pre-Petition liabilities for vacation, payroll, payroll Taxes, real estate and personal property Taxes, customer claims and rebates as set forth on SCHEDULE 4(b)(ii) in an amount not to exceed $2,593,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(iii) key employee retention bonuses approved by the Bankruptcy Court in an amount not to exceed $750,000, and obligations under employee Contracts set forth on SCHEDULE 7(d);
(iv) certain other pre-Petition liabilities set forth on SCHEDULE 4(b)(iv) in an amount not to exceed $2,475,000, to the extent approved by the Bankruptcy Court and not satisfied before Closing;
(v) the liabilities and obligations of Sellers under the Assigned Contracts that have accrued as of the Closing Date, including all Cure Amounts with respect thereto (except for Cure Amounts the payment of which would cause the Assumed Liabilities and DIP Payments to exceed $23,763,000, in which case Sellers shall make payments to the extent necessary to prevent such excess) and liabilities and obligations of Sellers under purchase orders and supply contracts; and
(vi) other post-Petition liabilities and obligations that have accrued as of the Closing Date in the Ordinary Course of Business, including but not limited to employee-related obligations such as 401(k), pension, health insurance, etc. (but not with respect to employees of SCMISchedule 1.11(i).
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