Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following: (a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13; (b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing; (c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement; (d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted; (e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing; (f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness; (g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities; (h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and (i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 4 contracts
Samples: Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Glaxosmithkline PLC)
Assumption of Assumed Liabilities. Upon (a) Except as expressly provided in Section 2.4(b), the terms 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 subject whether accrued or unaccrued.
(b) Subject to the conditions foregoing Section 2.4(a), effective as of this Agreementthe Closing Date, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 the following liabilities and Article VII, pay, perform, satisfy and discharge any and all Liabilities obligations of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the pastuse, present ownership or future ownership, operation, use or conduct operation of the Business Business, the Facilities or the Purchased other Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to paycollectively, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(ai) all Liabilities 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 expressly assumed by, retained by or agreed assigned to the Purchaser under the Assignment (JWWTP Agreements) and (z) each License included in the Assets required to be performed by Purchaser on or its Subsidiaries after the Closing Date;
(including ii) all accounts payable, accrued expenses and other current liabilities of the Conveyed Subsidiaries and their Subsidiaries) pursuant Sellers related to the terms Business and accrued or existing as of this Agreementthe Closing Date, including all Liabilities but only to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13included in the determination of Final Net Working Capital;
(biii) all Liabilities in respect of any Actionliabilities and obligations, whether classknown or unknown, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent 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 Business or the ownership, operation or conduct use of the Business prior toand the Assets, on or in each case, from and after the Closing;
(civ) all Liabilities for Taxes 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 Conveyed Subsidiaries and their Subsidiaries andAssets (which are being transferred as-is, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreementwhere-is);
(dv) all Liabilities 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 out of, from any act or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or omission after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Huntsman International LLC), Asset Purchase Agreement (Texas Petrochemicals Inc.), Asset Purchase Agreement (Texas Petrochemicals Inc.)
Assumption of Assumed Liabilities. Upon Subject to Section 2.6 below and --------------------------------- the terms and subject to the conditions of this Agreement, upon the transfer of the Acquired Assets at the Closing, Purchaser shall the Buyer agrees to assume the Assumed Liabilities (i) assume andas hereinafter defined), subject to Section 2.5, Section 6.5, Section 6.6 but only those and Article VII, pay, perform, satisfy and discharge any and all no others. The Liabilities of the Sellers or any to be transferred and assumed by the Buyer (the "Assumed Liabilities") shall mean and consist solely of their Affiliates certain Liabilities of the Seller relating to the Acquired Assets, which are strictly limited to:
(including A) the Conveyed Subsidiaries and their Subsidiariesactual costs incurred by the Sellers for the payment of the paid time off of the Employees (as hereinafter defined) on the Closing Date (the "Paid Time Off"), whether estimates of which amounts are set forth on Schedule -------- 2.5(A); provided, however, that the Buyer shall not be obligated to ------ -------- ------- reimburse the Sellers for more than an aggregate of Three Hundred Thousand Dollars ($300,000) in Paid Time Off; provided, further that the Sellers -------- ------- shall reimburse the Buyer for any payments made to Employees, pursuant to this Section 2.5(A), who are reemployed by the Seller's within six (6) months of the Closing Date; and
(B) all Liabilities and obligations of the Sellers arising prior to, on or from and after the Closing, Closing Date under the Activation Contracts or otherwise related to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct operation of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case ownership of the foregoing clauses (i) and (ii)Acquired Assets, other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities but only to the extent expressly assumed by, retained by such Liabilities and obligations do not relate to any default or agreed to be performed by Purchaser breach which has occurred on or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant prior to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterClosing Date.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Cellstar Corp), Asset Purchase Agreement (Cellstar Corp), Asset Purchase Agreement (Cellstar Corp)
Assumption of Assumed Liabilities. Upon On the terms and subject to the conditions of set forth in this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 from and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from Buyer shall assume and shall satisfy, perform or arising out discharge when due all of the pastLiabilities of Seller in respect of, present or future otherwise arising from the ownership, operation, operation or use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii)Acquired Assets, other than the Excluded Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include , including the followingfollowing Liabilities:
(a) all All Environmental Liabilities, other than the Excluded Environmental Liabilities to until such Excluded Environmental Liabilities become Assumed Liabilities as provided in Section 2.4(i) and, for avoidance of doubt, it is the extent expressly assumed byintention of the Parties that (i) Environmental Liabilities described in Section 2.4(i)(B)(II), retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their SubsidiariesSection 2.4(i)(C) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.132.4(i)(D) are not and would never become Assumed Liabilities and (ii) Environmental Liabilities resulting from Dig Activities are Assumed Liabilities;
(b) Except as set forth in Section 2.4(c), all Liabilities in respect related to the performance or non-performance of any Action, whether class, individual contractual obligations or otherwise in naturecommitments to be performed or addressed, in law or each case first arising from and after the Closing Date under (i) the Assigned Contracts, the Assigned Leases, the Transferable Permits and the Assigned Intellectual Property, in equityeach case in accordance with the terms thereof, whether or not presently threatenedexcept with respect to Taxes, asserted or pendingwhich shall be assumed in accordance with Section 2.7, and (ii) the Contracts, commitments and Transferable Permits entered into by Seller with respect to the extent arising out of, or to Acquired Assets during the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the ClosingInterim Period in accordance with Section 5.5;
(c) Except as set forth in Section 2.4(c), all Liabilities for Taxes related to the performance or non-performance of contractual obligations or commitments to be performed or addressed, in each case first arising from and after the Closing Date under the Permitted Liens, other than under or with respect to the exercise of the Conveyed Subsidiaries Reserved Easements;
(d) All Liabilities first arising from and their Subsidiaries andafter the Closing Date (i) for any compensation, without duplicationbenefits, all employment Taxes, workers compensation benefits and other similar Liabilities in respect of the Transferred Employees (including under the Generation CBA, any Employee Benefit Plan of Buyer, or any other agreement, plan, practice, policy, instrument or document relating to any of the Transferred Employees) created or owing as a consequence of employment by Buyer on or after the Closing Date, but not including any Liabilities arising out of the CBA MOA, (ii) relating to the Transferred Employees which Buyer has assumed or for Taxes imposed with which Buyer is otherwise responsible under Section 5.8, and (iii) in respect toof any discrimination, wrongful discharge, unfair labor practice or similar Claim under applicable employment Laws by any Transferred Employee arising out of or relating to the Purchased Assets acts or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, omissions occurring on or after the Closing, including warranty obligations and irrespective of the legal theory assertedClosing Date;
(e) all All Liabilities for (i) Taxes (including, with respect to suppliers property Taxes, payments in addition to or in lieu of Taxes, but not including the Property Tax Stabilization Payments) relating to the ownership, operation, sale or use of the Facilities and customersthe Acquired Assets, in each case to first arising from and after the extent arising out ofClosing Date, or the Assumed Liabilities and (ii) Taxes for which Buyer is liable pursuant to the extent relating toSection 2.7, the Business, including in respect of any Products returned prior to, on or after the Closing;Section 5.12 and Section 5.13; and
(f) all accounts payable and all All other Liabilities, Liabilities expressly allocated to Buyer in each case included this Agreement or in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness any of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterRelated Agreements.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Public Service Co of New Hampshire), Purchase and Sale Agreement, Purchase and Sale Agreement
Assumption of Assumed Liabilities. Upon At the Closing and on the terms and subject to the conditions of set forth in this Agreement, at Buyer agrees to assume only the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all following Liabilities of the Sellers or any of their Affiliates Company (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all executory Liabilities arising or to be performed after the Closing under all (i) Acquired Contracts listed on Schedule 3.11 and Acquired Leases as in existence on the date of this Agreement and set forth on Schedule 3.8; (ii) Acquired Contracts and Acquired Leases described in clause (i) to the extent the same are amended after the date of this Agreement with the prior written consent of Buyer; and (iii) those Acquired Contracts entered into after the date of this Agreement that Buyer expressly assumed byagrees to assume, retained by in each case other than and excluding any Liability arising out of or agreed relating to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant a breach that occurred prior to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Closing;
(b) all those Liabilities listed on Schedule 2.3, including, but not limited to a mortgage in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct favor of the Business prior toUnited States Department of Agriculture affecting a portion of the Owned Real Property, and certain equipment leases, all as more fully described on or after the ClosingSchedule 2.3;
(c) all Liabilities for Taxes with respect to all Remedial Actions and related costs and expenses (including, without limitation, investigation, remedial or corrective action, fines or penalties, and capital expenditures required to bring the Facility into compliance with Environmental Law) arising out of, required in connection with, or in any manner related to any of the Conveyed Subsidiaries conditions identified in the Litigation captioned People of the State of Illinois v. New CIE Energy Opco, LLC, and their Subsidiaries andThe Andersons, without duplicationInc. (No. 10-CH-33), venued in the Circuit Court for the Ninth Judicial Circuit, Xxxxxx County, Illinois, the Verified Complaint for Injunctive and Other Relief filed in such Litigation, the Agreed Injunction Order as to New CIE Energy Opco, LLC, No. 10-CH-33, and any subsequent interim or final orders entered in connection with such Litigation (collectively, the “Environmental Orders”), including, but not limited to, all other Liabilities for Taxes imposed costs and expenses associated with respect tothe processing, arising out treatment, transportation and disposal of or relating to the Purchased Assets or approximately 2.4 million gallons of process wastewater currently located at the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this AgreementFacility (the “Wastewater Cleanup”);
(d) all Liabilities effective as of the Closing Date, Buyer shall assume and agree to the extent pay, perform, and discharge or cause to be paid, performed and discharged those duties, obligations and liabilities arising out of, of or to in connection with the extent relating to, Buyer’s ownership or use of the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after Acquired Assets and the ClosingReal Property, including warranty obligations and irrespective of without limitation the legal theory asserted;Acquired Contracts, and
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable Buyer will be solely responsible for capital expenditures and all other Liabilitiescosts and expenses, in each case included in including without limitation obtaining and complying with all environmental permits, testing, licensing, and regulatory approval requirements, associated with bringing the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness Facility from its status as of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever Closing into an operational condition sufficient to the extent arising out ofresume operation, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities and to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letterachieve full nameplate operation.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Aventine Renewable Energy Holdings Inc), Asset Purchase Agreement (Nebraska Energy, L.L.C.)
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, at (a) At the Closing, Purchaser shall (i) assume andassume, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries agree to pay, perform, satisfy fulfill and discharge any the following obligations, and all only the following obligations, of their respective Seller (collectively, the “Assumed Liabilities, in each case of the foregoing clauses ”):
(i) all obligations and liabilities of the Seller to Purchaser, if any, which arise or accrue under promissory notes or other obligations entered into between the date of this Agreement and the Closing Date; and
(ii) all obligations and liabilities of the Seller to CBMZ pursuant to those certain promissory notes dated on or about July 2012, in aggregate principal amount of $75,000, which principal debt and accrued interest and other expenses will convert into shares of common stock of the Purchaser at the Closing, at the same rate as the price per share paid by the investors in the Pre-Closing Financing.
(b) Except as provided in Section 2.2(a), other than Liabilities identified as Retained Liabilities Purchaser shall not assume, in clauses connection with the transactions contemplated hereby, any liability or obligation of Seller whatsoever, whether known or unknown, disclosed or undisclosed, accrued or hereafter arising, absolute or contingent, and Seller shall retain responsibility for all such liabilities and obligations (a) through (g) of Section 2.5 (with all of the foregoing Liabilities being collectively such unassumed liabilities and obligations referred to herein as the “Assumed Excluded Liabilities”). The Assumed Excluded Liabilities shall also include will include, without limitation, any of the followingfollowing liabilities and obligations:
(ai) all Liabilities any liabilities or obligations for Indebtedness of Seller;
(ii) any liabilities for foreign, federal, state and local Taxes of Seller;
(iii) any liabilities or obligations under the Real Property Lease, the Personal Property Leases or Contracts of the Seller;
(iv) any liabilities or obligations of Seller arising out of any legal action, suit, proceeding or investigation pending as of the Closing;
(v) any liabilities or obligations arising out of Seller’s compliance or non-compliance with any Law;
(vi) any liabilities (other than Assumed Liabilities) to which Purchaser or any of the other Purchaser Indemnified Parties may become subject and that arises from or relates to any Product produced or sold or any services related to the Product performed by Seller prior to Closing;
(vii) any liabilities to the extent expressly assumed byarising out of employment, retained employment grievances or termination of employment of any persons employed by Seller, including any workmen’s compensation claims, or agreed any bonus, retention, severance or similar payment that Seller is obligated to be performed make to any current or former employee, director, consultant or other Person as a result of the acquisition of the Assets by the Purchaser;
(viii) any liabilities to the extent Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) is indemnified therefor pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(iix) the Liabilities set forth in Section 2.4(i) any liabilities under any employee benefit or welfare plan covering any present or former employee of the Seller Disclosure Letteror any of its Affiliates (including, without limitation, any liabilities relating to any health care plans or benefits).
Appears in 2 contracts
Samples: Asset Purchase Agreement (World Moto, Inc.), Asset Purchase Agreement (Net Profits Ten Inc.)
Assumption of Assumed Liabilities. Upon (a) Except as specifically provided in Section 1.4(b), the terms and subject to Purchaser will not assume, in connection with the conditions of transactions contemplated by this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities liability or obligation of the Sellers Seller or any of their Affiliates its subsidiaries whatsoever, and the Seller and its subsidiaries will retain responsibility for all liabilities and obligations accrued as of or on the Closing Date and all liabilities and obligations arising from the Seller's and its subsidiaries' operations prior to or on the Closing Date, whether or not accrued and whether or not disclosed.
(including b) As the Conveyed Subsidiaries and their Subsidiariessole exception to the provisions in Section 1.4(a), whether arising prior toeffective as of the close of business on the Closing Date, on the Purchaser will assume and agree to pay, discharge or after perform, as appropriate, the Closing, to following liabilities and obligations of the extent resulting from or Seller existing as of such time and arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior toto or on the Closing Date (collectively, the "Assumed Liabilities"):
(i) obligations of the Seller and its subsidiaries under the Assumed Contracts to the extent such obligations are disclosed on the face of such Assumed Contracts or are disclosed and quantified in Section 3.11 of the Seller Disclosure Letter (or if not otherwise so disclosed would result in costs or expenses less than $15,000 with respect to any individual Assumed Contract or customer) and accrue and relate to the operations of the Business;
(ii) liabilities and obligations with respect to the Assets to the extent such liabilities and obligations arise or accrue after the Closing Date;
(iii) liabilities and obligations as set forth in Section 5.12; and
(iv) trade payables of the Seller and its subsidiaries pertaining to the Assets or Assumed Liabilities arising in the ordinary course of business consistent with past practice which have accrued prior to the date hereof or in compliance with Article V hereof. Notwithstanding the foregoing, and for the avoidance of doubt, the Purchaser shall perform all obligations under the Assumed Contracts, whether required to be performed either before or after the Closing;
(c) all Liabilities for Taxes ; provided that any losses or damages resulting from the breach of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating any such Assumed Contract prior to the Purchased Assets or Closing shall not be assumed by the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations Purchaser and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case shall be included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Excluded Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Phoenix International LTD Inc), Asset Purchase Agreement (London Bridge Software Holdings PLC)
Assumption of Assumed Liabilities. Upon the terms (a) From and subject to the conditions of this Agreement, at after the Closing, Purchaser Xxxxxx Sub shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VIIassume, pay, perform, satisfy fulfill and discharge any those obligations of Xxxxxx Industries (i) that are required to be performed under those contracts, leases of Leased Equipment and all Liabilities Real Property identified on Disclosure Schedule 2.3(a) (collectively, the "Assigned Contracts"); (ii) that are accrued for on the Closing Balance Sheet as a Current Liability, to the extent of such accrual (including without limitation properly accrued vacation pay); and (iii) for product warranty claims now pending or subsequently asserted regarding products of the Sellers Xxxxxx Division Manufactured prior to the Closing Date, to the extent of the Product Warranty Cap Amount. The liabilities assumed under this Section 2.3(a) are referred to herein as the "Assumed Liabilities."
(b) Except for the Assumed Liabilities, in no event shall Buyers assume or incur any liability or obligation hereunder of Sellers' or any of their subsidiaries or Affiliates (including collectively, the Conveyed Subsidiaries and their Subsidiaries"Retained Liabilities"). Without limiting the generality of the foregoing, whether Buyers assume no liability hereunder with respect to (i) liabilities or obligations arising out of Sellers' failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to, on or after to the Closing, (ii) any product liability, claim of defective products or similar claim for injury to person (including death) or property or for recall of a defective product for products Manufactured prior to the Closing Date, regardless of when made or asserted, except for product warranty claims, to the extent provided for hereunder, (iii) any federal, state or local income tax of Sellers', and (iv) any other obligation or liability (and all costs and expenses relating thereto) arising in connection with or resulting from from, in whole or in part, events or conditions occurring or existing in connection with or arising out of the past, present or future ownership, operation, use or conduct operation of the Business by Sellers or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to payownership, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distributionpossession, use or sale of Products the Xxxxxx Assets prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterClosing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Top Air Manufacturing Inc), Asset Purchase Agreement (Owosso Corp)
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, at At the Closing, the Purchaser shall (i) assume andassume, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries hereby agrees to pay, performperform and discharge, satisfy and discharge any and all of their respective Liabilitiesonly Liabilities set forth below (collectively, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all Liabilities arising under, with respect to or contained in the Transferred Contracts, but only to the extent expressly assumed bysuch obligations (i) arise after the Closing Date, retained (ii) do not arise from or relate to any breach by the Seller of any provision of any of such Contracts, and (iii) do not arise from or agreed relate to any event, circumstance or condition occurring or existing on or prior to the Closing Date that, with notice or lapse of time, would constitute or result in a breach of any of such Contracts (it being understood that no warranty obligations under such Contracts related to the sale of the Business Products prior to the Closing shall be Assumed Liabilities); for avoidance of doubt, the Purchaser will pay the remaining development fees to be performed by Purchaser or its Subsidiaries (including paid to Finechips after the Conveyed Subsidiaries and their SubsidiariesClosing Date as set forth on Schedule 2.3(a) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13attached hereto;
(b) except to the extent the Purchaser is indemnified for a breach of a representation or warranty by the Seller under this Agreement, all Liabilities in respect Liabilities, suits, actions, investigations and obligations resulting from, arising out of any Actionor related to (i) the Transferred Assets or the ownership or use thereof, whether class(ii) the sale or provision of the Business Products, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending(iii) the conduct of the Business by the Purchaser, to the extent arising out ofthat, or to the extent relating toin each case, the Business or the operation or conduct of the Business prior tosuch Liabilities, on or suits, actions, investigations and obligations arise after the Closing;
(c) all Liabilities for Property Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or Post-Closing Tax Period specifically allocated to the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable Purchaser pursuant to this Agreement;Section 6.11(b); and
(d) all Liabilities with respect to the Transferred Assets arising pursuant to any applicable Laws to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or such Liabilities arise after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ixys Corp /De/), Asset Purchase Agreement (Ixys Corp /De/)
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, at (a) At the Closing, the Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries agrees to pay, discharge or perform, satisfy and discharge any and all of their respective Liabilitiesas appropriate, in each case when due only the liabilities of the foregoing clauses Seller specifically identified below in this Section 1.4(a) (i) and (ii)collectively, other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include , other than the followingRetained Liabilities:
(ai) all Liabilities to accounts payable, payroll and other liabilities of the extent expressly assumed by, retained by Business first arising for services rendered after the Closing Date; and
(ii) any obligations under the Assumed Contracts.
(b) Notwithstanding Section 1.4(a) or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms any other provision of this Agreement, the Purchaser is not assuming under this Agreement or any other Transaction Document any liability that is not specifically identified as an Assumed Liability under Section 1.4(a), including all Liabilities to any of the extent transferred to or assumed or retained following (each, an “Retained Liability”):
(i) any liability arising out of any default by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13the Seller of any provision of any contract;
(bii) all Liabilities any product liability or similar claim for injury to any Person or property, regardless of when made or asserted, that arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by the Seller, or alleged to have been made by the Seller, or that is imposed or asserted to be imposed by operation of Law in connection with any service performed or product sold or leased by or on behalf of the Seller on or prior to the Closing Date;
(iii) any Tax payable by the Seller with respect to the Business, the Purchased Assets or other properties or operations of the Seller for any Actionperiod (or portion thereof) ending on or prior to the Closing;
(iv) any transfer, whether classdocumentary, individual sales, use, stamp, registration or otherwise other such Taxes and fees (including any penalties and interest) incurred in nature, in law connection with this Agreement or the transactions contemplated hereby;
(v) any liability under or in equityconnection with any Excluded Assets;
(vi) any liability arising prior to the Closing Date or as a result of the Closing for severance, bonuses or any other form of compensation to any employees, agents or independent contractors of the Seller, whether or not presently threatened, asserted employed by the Purchaser or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or Parent after the Closing;
(cvii) all Liabilities for Taxes any liability of the Conveyed Subsidiaries Seller arising or incurred in connection with the negotiation, preparation and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out execution of or relating to this Agreement and the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreementtransactions contemplated hereby;
(dviii) all Liabilities any liability (including any environmental liability) arising from or related to the extent any event, fact, circumstance or condition existing or arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after before the Closing, including warranty obligations and irrespective of the legal theory assertedClosing Date;
(eix) all Liabilities to suppliers and customers, in each case to any liability for money borrowed by the extent arising out of, Seller or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the ClosingAffiliate thereof;
(fx) all accounts payable payable, payroll and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness liabilities of the Conveyed Subsidiaries (Business for services rendered on or their Subsidiaries) that is not Funded Indebtednessprior to the Closing Date;
(gxi) all Environmental Liabilities of any nature whatsoever to liabilities under the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including PurchaserSeller’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d)Employee Benefit Plans; and
(ixii) the Liabilities set forth in Section 2.4(i) any other liability, regardless of the Seller Disclosure Letterwhen made or asserted, that is not specifically assumed hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tabula Rasa HealthCare, Inc.), Asset Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Assumption of Assumed Liabilities. Upon On the terms and subject to the conditions of contained in this Agreement, effective at the Closing, Purchaser shall (i) Buyer will assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, thereafter pay, perform, satisfy and perform or otherwise discharge any and all only the following Liabilities of Seller (collectively, the Sellers or “Assumed Liabilities”):
(a) all obligations of Seller to be performed under the Purchased Contracts (excluding, for the avoidance of doubt, Excluded Contracts) for periods after the Closing, but excluding any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries)Liability, whether incurred or arising prior to, on or after the ClosingClosing Date, in connection with any actual or alleged breach, default or other failure to perform under any Purchased Contract or violation of Law, in any case, occurring or alleged to have occurred at or prior to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Closing;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, and obligations to the extent arising out of, from or related to the extent relating to, the Business or the operation or conduct of the Business after the Closing (other than in connection with the Purchased Contracts), but excluding any Liability, whether incurred or arising prior to, on or after the Closing Date, in connection with any actual or alleged breach, default or other failure to perform under any Purchased Contract or violation of Law occurring or alleged to have occurred at or prior to the Closing;
(c) all Liabilities for Taxes liabilities and obligations of Buyer or its Affiliates relating to employee benefits, compensation or other arrangements with respect to any Transferred Employee arising on or after the Closing but not including any bonus payments payable thereunder as a result of the Conveyed Subsidiaries transactions contemplated hereunder (ie. change of control);
(d) all liabilities and their Subsidiaries and, without duplication, all other Liabilities obligations for (i) Taxes imposed with respect to, arising out of or relating to the Business, the Purchased Assets or the Business, in each case, other than Seller Indemnified Assumed Liabilities for any taxable period ending after the Closing Date and (ii) Taxes for which Seller Parent Buyer is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers other liabilities and customers, in each case to the extent obligations arising out of, of or relating to Buyer’s ownership or operation of the extent relating to, Business and the Business, including in respect of any Products returned prior to, Purchased Assets on or after the Closing;
(f) all accounts payable liabilities and all other Liabilities, in each case included in the calculation obligations of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities Seller set forth in on Section 2.4(i1.3(f) of the Seller Disclosure LetterSchedules.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon (a) As additional consideration to Seller included in the terms Purchase Price and subject in exchange for the performance by Seller of its obligations hereunder, effective as of the Closing Date, Buyer hereby assumes and agrees to the conditions of this Agreementpay, at the Closingdischarge and perform as and when due, Purchaser shall (i) assume and, subject all liabilities and obligations (including all obligations with respect to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities performance) arising under each of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or Contracts after the ClosingClosing Date, to the extent resulting from or arising out of the pastexcept for such post-Closing liabilities that are expressly set forth as Excluded Liabilities in Section 2.04(b) below, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause those additional liabilities and obligations expressly set forth on SCHEDULE 2.04. The liabilities and obligations described in the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively preceding sentence are referred to herein as the “"Assumed Liabilities”). The Assumed Liabilities shall also include the following:."
(ab) all Liabilities Subject to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms other provisions of this Agreement, it is understood and agreed that Seller shall retain all liability for, and Buyer shall not assume or have any obligation with respect to, the following obligations or liabilities of Seller (all such obligations and liabilities being herein referred to as the "Excluded Liabilities"):
(i) any and all obligations of Seller arising under law or contract with respect to any individual in connection with his or her employment by Seller before or after the Closing including obligations arising in connection with Seller's termination of his or her employment with Seller at any time, regardless of whether such obligations would have arisen had Buyer chosen to employ any such employee following Closing, including, without limitation, obligations under any and all Liabilities to of Seller's severance benefits, medical or other insurance coverages, retirement benefits or any other benefit or obligation of Seller of whatsoever nature, arising out of the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 employment relationship between Seller and Section 6.13such employee;
(bii) all Liabilities in respect the occupancy, ownership, use or operation of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business Purchased Assets or the operation or conduct of the Business prior to, on or after prior to the Closing Date including, without limitation, taxes attributable to the period on and before Closing but not due and payable as of the Closing;
(iii) any liability, obligation or expense heretofore or which may hereafter be incurred with respect to the Encompass Systems and Soil Sentry Systems placed in service by Seller prior to Closing based on such systems not being Year 2000 Compliant or incurred with respect to such systems to render them Year 2000 Complaint; and
(iv) any liability, obligation or expense heretofore or which may hereafter be incurred by Seller in connection with lawsuit filed against Seller by BP Oil Company in the United States District Court in the Northeast District of Ohio (the "BP Litigation").
(c) all Buyer hereby agrees to indemnify, defend and hold harmless Seller with respect to any claims, damages or liability arising with respect to the Assumed Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplicationafter Closing, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or and the Business. Seller hereby agrees to indemnify, in each casedefend and hold harmless Buyer with respect to any claims, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities damages or liability arising with respect to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Excluded Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon Effective upon the execution and delivery hereof, Buyer hereby assumes and agrees to pay, perform and discharge, without recourse to Seller or Parent, the following Liabilities of Seller (excluding, however, for the avoidance of doubt, for all purposes whatsoever any Excluded Liabilities), solely to the extent such Liabilities accrue or arise from and after the Closing, in each case in accordance with the respective terms and subject to the respective conditions of this Agreementthereof (collectively, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all All Liabilities of Seller under the Transferred Contracts, Transferred Permits and Transferred Intellectual Property, in each case in accordance with the terms thereof, except to the extent expressly assumed bythat such Liabilities, retained but for a breach or default by Seller, would have been paid, performed or agreed to be performed by Purchaser otherwise discharged on or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant prior to the terms of this Agreement, including all Liabilities Closing Date or to the extent transferred to the same arise out of any such breach or assumed default or retained out of any event which after the giving of notice would constitute a default by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Seller;
(b) all Liabilities with respect to Madison Station arising under or relating to Environmental Laws or relating to any claim in respect of any ActionEnvironmental Conditions or Hazardous Substances, including settlements, judgments, costs and expenses, including reasonable attorneys fees, whether class, individual or otherwise in nature, in based on common law or Environmental Laws, but in equity, whether or not presently threatened, asserted or pending, each case solely to the extent accruing or arising out offrom and after the Closing Date, with respect to (i) any violation or alleged violation of Environmental Laws with respect to the ownership, lease, maintenance or operation of any of the Purchased Assets, including any fines or penalties that arise in connection with the ownership, lease, maintenance or operation of the Purchased Assets, and the costs associated with correcting any such violations; (ii) loss of life, injury to persons or property or damage to natural resources caused (or allegedly caused) by any Environmental Condition or the presence or Release of Hazardous Substances at, on, in, under, adjacent to or migrating from the Purchased Assets, including any Environmental Condition or Hazardous Substances contained in building materials at or adjacent to the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at or near the Purchased Assets; (iii) any Remediation of any Environmental Condition or Hazardous Substances that are present or have been Released at, on, in, under, adjacent to or migrating from, the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells or in other environmental media at or adjacent to the extent relating toPurchased Assets; (iv) any bodily injury, loss of life, property damage, or natural resource damage arising from the Business storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, of Hazardous Substances generated in connection with the ownership, lease, maintenance or operation of the Purchased Assets; (v) any Remediation of any Environmental Condition or Release of Hazardous Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, of Hazardous Substances generated in connection with the ownership, lease, maintenance or operation of the Purchased Assets; and (vi) any obligation to repower, replace, decommission, deactivate, dismantle, demolish or close the Purchased Assets or any portion thereof, or any surface impoundments or other waste or effluent handling or storage units on owned or leased adjacent properties used in connection with the operation or conduct of the Business prior to, on or after the ClosingPurchased Assets;
(c) all Liabilities liabilities or obligations to third parties for Taxes personal injury or tort, or similar causes of action arising solely out of the Conveyed Subsidiaries and their Subsidiaries andownership, without duplicationlease, all other Liabilities for Taxes imposed with respect to, arising out maintenance or operation of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities but in each case solely to the extent relating to, resulting from accruing or arising out of from and after the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d)Closing Date; and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cincinnati Gas & Electric Co)
Assumption of Assumed Liabilities. Upon Subject to the terms and subject to the conditions of this Purchase Agreement, at as of the ClosingClosing Date, the Purchaser shall (i) assume andassume, subject to Section 2.5and shall be solely and exclusively liable with respect to, Section 6.5, Section 6.6 and Article VII, shall pay, perform, discharge and satisfy and discharge any and all Liabilities when due, the following liabilities of the Sellers or any of their Affiliates Seller (including collectively, the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:"ASSUMED LIABILITIES"):
(a) all Liabilities liabilities of the Seller under any portion of any contract included in the Purchased Assets which according to such contract relate to periods after the extent expressly assumed by, retained by or agreed Closing Date and are to be performed by Purchaser paid, performed, discharged or its Subsidiaries (satisfied after the Closing Date; PROVIDED, HOWEVER the Seller shall retain the balance of the liabilities under such contracts including without limitation, all accounts payable as of the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Closing Date;
(b) all Liabilities liabilities (i) arising out of the use, storage, handling, sale or other disposal of the CombiPatch Product sold or otherwise disposed of in respect the Territory following the Closing Date, including, without limitation, all liabilities for product liability, returned goods and Rebates; and (ii) arising from or relating to the storage, handling or use of any ActionInventory by or on behalf of the Purchaser or any of its Affiliates at any time after the delivery of the Inventory to the Purchaser pursuant to Section 2.5; PROVIDED, whether classHOWEVER, individual that the Seller and its Affiliates shall retain all liabilities (A) arising out of the use, sale or other disposal of the CombiPatch Product sold or otherwise in naturedisposed of on or before the Closing Date, in law including, without limitation, all liabilities for product liability, returned goods and Rebates; and (B) arising from or in equity, whether or not presently threatened, asserted or pending, relating to the extent arising out ofstorage, handling or use of any Inventory by or on behalf of the Seller or any of its Affiliates at any time prior to the extent relating to, the Business or the operation or conduct delivery of the Business prior to, on or after Inventory to the ClosingPurchaser pursuant to Section 2.5;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplicationSubject to Section 3.1(b) above, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including liabilities in respect of any Products CombiPatch Product warranties and any returned prior to, on CombiPatch Product for any CombiPatch Product sold or otherwise disposed of after the Closing;
(f) all accounts payable and all other LiabilitiesClosing Date; PROVIDED, in each case included in the calculation of Final Business Working CapitalHOWEVER, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of such liabilities attributable to any CombiPatch Product that is returned without solicitation or inducement by the Conveyed Subsidiaries Purchaser and in accordance with the Seller's returned goods policy and practices, and that was sold by the Seller or its Affiliates on or before the Closing Date, the Seller shall reimburse the Purchaser within thirty (30) days of being invoiced by the Purchaser for the costs of replacing such CombiPatch Product or their Subsidiariesthe rebate or credit issued in lieu of such replacement; PROVIDED, FURTHER, that the cumulative total of such invoices shall not exceed ***, that the Seller shall not be liable for any CombiPatch Product returned more than *** after the Closing Date and that, on request by the Seller the Purchaser will provide the Seller with copies of such backup documentation as is reasonably necessary to the Seller to support Purchaser's reimbursement claims under this Section 3.1(c), including without limitation invoices showing the Purchased Assets, number of pieces returned and the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out lot number of each such piece. A copy of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(dSeller's returned goods policy is attached hereto as SCHEDULE 3.1(c); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon the terms terms, and subject to the conditions conditions, set forth herein, Buyer agrees, effective as of this Agreementthe Effective Time, at the Closing, Purchaser shall (i) to assume and, subject and to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all when due, the following Liabilities of Seller and its applicable Affiliates, which shall exclude the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing following Liabilities being herein collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all the Specified Current Liabilities as of immediately prior to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Effective Time;
(b) subject to Section 5.9, all Liabilities in respect of any Action, whether class, individual arising under the terms (or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to from the extent arising out of, or to the extent relating to, the Business or the operation or conduct performance) of the Business prior to, on Transferred Contracts and Assumed Leases at or after the Effective Time, other than any Liability resulting from a breach of the applicable Transferred Contract or Assumed Lease by Seller prior to the Closing;
(c) all Liabilities for any (i) Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes attributable to or imposed with respect to, arising out of or relating to on the Purchased Assets or the Businessoperation of the recordkeeping, trust and custody and discretionary business of Buyer and its Affiliates, in each case, other than Seller Indemnified case with respect to any Post-Closing Tax Period and (ii) Transfer Taxes for which Seller Parent Buyer is liable pursuant to this AgreementSection 9.3;
(d) all Liabilities (i) arising out of the employment or termination of employment of any Transferred Employees (including all Liabilities with respect to their dependents and beneficiaries), whenever incurred, that are not expressly retained by Seller or its Affiliates pursuant to Section 5.2; (ii) relating to the extent arising out offailure of Buyer and its Affiliates to timely provide a Comparable Job Offer to any Business Employee, including any severance, notice or to the extent relating toother termination payments resulting from a termination of employment of such Business Employee with Seller and its Affiliates (any such Liabilities or payments, the design, manufacture, testing, marketing, distribution, use “Inadequate Offer Payments”); and (iii) that are assumed by Buyer or sale one of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory assertedits Affiliates pursuant to Section 5.2;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(hthose assumed pursuant to any other clause of this Section 2.3) all Liabilities to the extent relating to, resulting from or arising out of the Purchased Assets (other than the Transferred Contracts and Assumed ContractsLeases, including Purchaser’s or its Affiliates’ which are subject to clause (including any Conveyed Subsidiary’s or its Subsidiaries’b) portion of Shared Contractual Liabilities pursuant to this Section 2.2(d)2.3) from and after the Effective Time; and
(if) the Liabilities any Liability set forth in Section 2.4(i2.3(f) of the Seller Disclosure Letter.
Appears in 1 contract
Assumption of Assumed Liabilities. (a) Upon the terms consummation of, and subject to the conditions of this Agreementeffective as of, at the Closing, the Purchaser agrees to assume and shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge when due any and all of their respective Liabilitiesthe following obligations, in each case liabilities and commitments of the foregoing clauses Seller or its Affiliates, whether known or unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise (i) and (ii)collectively, other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(ai) all Liabilities any obligations and liabilities of the Seller or its Affiliates arising after the Effective Time under each Assumed Contract and each Additional Contract that accrue and relate to the extent expressly assumed by, retained operations of the Business subsequent to the Effective Time (excluding any obligation or liability relating to or arising from (1) any breach or default by or agreed to be performed by Purchaser the Seller or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant Affiliates existing prior to the terms Effective Time under the Assumed Contracts or the Additional Contracts, (2) any action taken by the Seller or its Affiliates prior to the Effective Time in breach of the Seller’s obligations set forth in Section 6.1 of this Agreement, including all Liabilities to the extent transferred to Agreement or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13(3) any Excluded Liability);
(bii) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect toliabilities accruing, arising out of or relating to the Purchased Assets or and the Businessbusiness activities of the Purchaser with respect to the Assets after the Effective Time (including, in each casefor the avoidance of doubt, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities during the period between the Effective Time and the Closing Date), to the extent arising out ofsuch liabilities (A) (1) first arise or accrue after the Effective Time, (2) do not arise as a result of any breach or default by the Seller or any of its respective Affiliates prior to the extent relating toEffective Time, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e3) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case are not included in the calculation Excluded Liabilities or (B) (1) do not arise as a result of Final Business Working Capitalany breach or default by the Seller or any of its respective Affiliates prior to the Effective Time, all Funded Indebtedness (2) are property or similar ad valorem Taxes allocable on a daily basis to any taxable period or portion thereof beginning after the Effective Time and (3) are not included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Excluded Liabilities;
(hiii) all Liabilities the Bonus Payables, to the extent relating to, resulting from or arising out of set forth on the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d)Effective Time Bonus Payable Statement; and
(iiv) all payroll amounts incurred by the Liabilities set forth Seller and its Affiliates with respect to the Transferred Employees for the period beginning as of the Effective Time and ending on the Closing Date, including all amounts with respect to wages, bonuses, employment withholding taxes (e.g., social security tax payments) and employment benefits (excluding amounts related to health insurance).
(b) Except as provided in Section 2.4(i) 2.4(a), the Purchaser shall not assume, in connection with the transactions contemplated by this Agreement, any liability or obligation of the Seller Disclosure Letteror its Affiliates whatsoever, and the Seller and its Affiliates shall retain responsibility for all liabilities and obligations accrued on or prior to the Effective Time and all liabilities and obligations arising from the Seller’s and its Affiliates’ business on or prior to the Effective Time, whether or not accrued and whether or not disclosed.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon (a) Except as provided in Section 2.3(b), the terms and subject to the conditions of this Agreement, at the Closing, Purchaser shall (i) assume andnot assume, subject to Section 2.5in connection with the transactions contemplated hereby, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities liability or obligation of the Sellers or any of their Affiliates (including or the Conveyed Subsidiaries and their Subsidiaries)Business whatsoever, whether arising prior toknown or unknown, on disclosed or after undisclosed, accrued or hereafter arising, absolute or contingent, and the Sellers (or the applicable Affiliate) shall retain responsibility for all such liabilities and obligations.
(b) Effective as of the Closing, the Purchaser shall assume:
(i) the obligations of the Sellers under each Assumed Contract, to the extent resulting from such obligations are not required to be performed on or arising prior to the date of the Closing, do not arise out of any breach or default thereunder by the pastSellers prior to the Closing Date, present or future ownershipare set forth in writing in such Assumed Contract (except in the case of Assumed Contracts that are oral Contracts, operationin which case Seller has provided Purchaser with a complete, use or conduct correct and true summary of the terms of such oral Contracts), and accrue and relate to the operations of the Business or subsequent to the Purchased Assets Closing Date (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include , provided that if the following:
(a) all Liabilities Purchaser is required to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of perform any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct obligations of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, Sellers under Contracts other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including the Purchaser shall notify the Sellers thereof and invoice the Sellers for the Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d)actual costs in connection therewith and the Sellers shall immediately pay each such invoice; and
(iii) the Liabilities except as set forth in Section 2.4(i6.2, all liabilities with respect to Transferred Employees (as defined in Section 6.2(b) of this Agreement) arising after the Seller Disclosure LetterClosing.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon (a) Subject to the terms and subject to the conditions of this Agreement, at the Closing, Purchaser shall assume the Company's liabilities and obligations (i) assume andunder the Contracts (other than Excluded Contracts (as defined below)) listed on Schedule 2.16 hereto arising exclusively from, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior accruing exclusively with respect to, on or the period after the Closing, (ii) for personal injuries and property damage occurring at any time after the Closing Date caused by products manufactured by the Company and (iii) as set forth on the Closing Date Balance Sheet (as defined below) (the "Assumed Liabilities"). Purchaser shall assume no other liabilities of the Company, except that, upon the prior written request of the Company, Purchaser will repair or replace defective shock mounts at the Purchaser's cost and expense.
(b) Notwithstanding anything to the extent resulting from contrary contained herein, Purchaser shall not assume or arising out be bound by or be obligated or responsible for any duties, responsibilities, commitments, expenses, obligations or liabilities of the past, present Company or future ownership, operation, use relating to the Acquired Assets or conduct the Business (or which may be asserted against or imposed upon Purchaser as a successor or transferee of the Company or as an acquirer of the Acquired Assets or the Business or otherwise as a matter of Law) of any kind or nature, whether fixed or contingent, known or unknown, warranties, obligations or claims (collectively, the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective "Non-Assumed Liabilities, in each case of the foregoing clauses (i) and (ii"), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) the Assumed Liabilities. Without limitation of Section 2.5 (the foregoing, all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The following shall be considered Non-Assumed Liabilities shall also include for the followingpurposes of this Agreement:
(ai) all Liabilities any liability or obligation arising out of any Contract that (A) subject to Section 1.7 hereof, was not capable of being assigned to Purchaser as of the Closing until such time that such Contract has effectively been assigned, or the benefits thereof made available, to Purchaser, (B) is required by the terms thereof to be discharged on or prior to the extent expressly assumed byClosing, retained (C) relates to or arises out of a breach or default by the Company on or agreed prior to the Closing (including any event occurring at or prior to the Closing that with the lapse of time or the giving of notice, or both, would become a breach or default) under any Contract or to any services or products provided or to be performed provided by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of Company under any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, such Contract arising out of or relating to any time on or prior to December 31, 2003 or (D) is specified on Schedule 1.5(b) hereto (the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement"Excluded Contracts");
(dii) all Liabilities to the extent any liability for Taxes;
(iii) any liability or obligation arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on (whether arising before or after the Closing) under or with respect to any Benefit Plan (as defined in Section 2.7(b) hereof) or any other compensation or employee benefit plan, policy or arrangement or collective bargaining agreement maintained, contributed to or entered into at any time by the Company or any of its Affiliates or with respect to the employment of any Employee, agent or independent contractor by the Company or any of its Affiliates (whether or not employed by Purchaser after the Closing), including warranty obligations and irrespective of the legal theory assertedany liability or obligation with respect to workers compensation, unemployment insurance premiums or any claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws;
(eiv) all Liabilities to suppliers and customers, in each case any liability or obligation relating to the extent arising out of, or operation of the Company prior to the extent relating to, the Business, Closing arising by operation of Law under any common Law or statutory doctrine (including in respect of any Products returned prior to, on successor liability or after the Closingde facto merger);
(fv) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (any liability or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or obligation in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Excluded Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(ivi) any liabilities to Employees or others under any provisions relating to changes of control or the Liabilities set forth in Section 2.4(ilike.
(c) of the Seller Disclosure LetterThe Company hereby irrevocably waives and releases, and has caused its Affiliates to waive and release, Purchaser from all Non-Assumed Liabilities, including any liabilities or obligations created or which arise by statute or common Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (National Technical Systems Inc /Ca/)
Assumption of Assumed Liabilities. Upon Effective upon the execution and delivery hereof, Buyer hereby assumes and agrees to pay, perform and discharge, without recourse to Seller or Parent, the following Liabilities of Seller (excluding, however, for the avoidance of doubt, for all purposes whatsoever any Excluded Liabilities), solely to the extent such Liabilities accrue or arise from and after the Closing, in each case in accordance with the respective terms and subject to the respective conditions of this Agreementthereof (collectively, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all All Liabilities of Seller under the Transferred Contracts, Transferred Permits and Transferred Intellectual Property, in each case in accordance with the terms thereof, except to the extent expressly assumed bythat such Liabilities, retained but for a breach or default by Seller, would have been paid, performed or agreed to be performed by Purchaser otherwise discharged on or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant prior to the terms of this Agreement, including all Liabilities Closing Date or to the extent transferred to the same arise out of any such breach or assumed default or retained out of any event which after the giving of notice would constitute a default by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Seller;
(b) all Liabilities with respect to Xxxxx County Station arising under or relating to Environmental Laws or relating to any claim in respect of any ActionEnvironmental Conditions or Hazardous Substances, including settlements, judgments, costs and expenses, including reasonable attorneys fees, whether class, individual or otherwise in nature, in based on common law or Environmental Laws, but in equity, whether or not presently threatened, asserted or pending, each case solely to the extent accruing or arising out offrom and after the Closing Date, with respect to (i) any violation or alleged violation of Environmental Laws with respect to the ownership, lease, maintenance or operation of any of the Purchased Assets, including any fines or penalties that arise in connection with the ownership, lease, maintenance or operation of the Purchased Assets, and the costs associated with correcting any such violations; (ii) loss of life, injury to persons or property or damage to natural resources caused (or allegedly caused) by any Environmental Condition or the presence or Release of Hazardous Substances at, on, in, under, adjacent to or migrating from the Purchased Assets, including any Environmental Condition or Hazardous Substances contained in building materials at or adjacent to the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at or near the Purchased Assets; (iii) any Remediation of any Environmental Condition or Hazardous Substances that are present or have been Released at, on, in, under, adjacent to or migrating from, the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells or in other environmental media at or adjacent to the extent relating toPurchased Assets; (iv) any bodily injury, loss of life, property damage, or natural resource damage arising from the Business storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, of Hazardous Substances generated in connection with the ownership, lease, maintenance or operation of the Purchased Assets; (v) any Remediation of any Environmental Condition or Release of Hazardous Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, of Hazardous Substances generated in connection with the ownership, lease, maintenance or operation of the Purchased Assets; and (vi) any obligation to repower, replace, decommission, deactivate, dismantle, demolish or close the Purchased Assets or any portion thereof, or any surface impoundments or other waste or effluent handling or storage units on owned or leased adjacent properties used in connection with the operation or conduct of the Business prior to, on or after the ClosingPurchased Assets;
(c) all Liabilities liabilities or obligations to third parties for Taxes personal injury or tort, or similar causes of action arising solely out of the Conveyed Subsidiaries and their Subsidiaries andownership, without duplicationlease, all other Liabilities for Taxes imposed with respect tomaintenance or operation of the Purchased Assets, arising out of or relating but in each case solely to the Purchased Assets extent accruing or arising from and after the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;Closing Date; and
(d) all Liabilities to any Tax that may be imposed by any federal, state or local government on the extent arising out ofownership, sale, operation or to use of the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, Purchased Assets on or after the ClosingClosing Date, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities except for any income Taxes attributable to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letterincome received by Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cincinnati Gas & Electric Co)
Assumption of Assumed Liabilities. Upon Subject to Section 2.3(b), as of the Closing Date, Buyer shall acquire the Assets subject only to, and Buyer and CCIC shall undertake, assume, perform and otherwise pay, satisfy and discharge, and on the terms set forth in Article 8 hold Powertel and subject to the conditions of this AgreementSellers harmless from, at the Closingfollowing Liabilities (collectively, Purchaser shall the "Assumed Liabilities"):
(i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of Powertel or the Sellers or any of their Affiliates under all Contracts included within the Assets (including the Conveyed Subsidiaries Site Leases, Tower Leases, Tower Equipment Leases and their SubsidiariesTower Service Contracts), whether arising prior tobut only to the extent such Liabilities accrue or relate to the period from and after the Closing Date;
(ii) the rents, on revenues, Taxes, charges and payments that are apportioned for the account of Buyer pursuant to Section 2.7 hereof; and
(iii) all Liabilities of Powertel or the Sellers, whenever and however incurred or accrued, which arise in connection with the ownership, lease, use or occupancy of or under the Assets from and after the Closing, to except for the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein and except as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to may be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) limited pursuant to the terms foregoing provisions of this AgreementSection 2.3(a). Notwithstanding the assumption of the Assumed Liabilities as set forth above, including all Liabilities nothing herein shall be deemed or construed to relieve Powertel or the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out ofSellers, or to be an assumption by CCIC and Buyer, of any Liability arising from any event, condition, occurrence or other matter which is the extent relating to, the Business subject of a breach or Default by Powertel or the operation Sellers of a representation, warranty or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, covenant contained in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, Agreement or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterContract.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon At the Closing and on the terms and subject to the conditions of set forth in this Agreement, at the Closing, Purchaser shall (i) Buyer agrees to assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all only the following Liabilities of the Sellers or any of their Affiliates Seller Group and no others (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all Liabilities with respect to the Acquired Contracts (including any Liabilities under any Indebtedness of the type set forth in (v) of Indebtedness), except for those Liabilities arising out of, relating to, resulting from or caused by any breach of Contract, breach of warranty, tort, infringement, environmental liability or violation of Law by the Seller Group prior to the Closing, which, for the avoidance of doubt shall be Retained Liabilities;
(b) all trade accounts payable and other current Liabilities of Seller to third parties, whether or not the underlying data or invoice is entered into the IT Assets or posted to accounts payable but provided that such accounts payable and other current Liabilities of Seller were incurred in the Ordinary Course of Business and not entered into in violation of this Agreement, solely to the extent expressly assumed byin connection with the Business that (i) comprise a part of the Net Working Capital, retained by (ii) arose in the Ordinary Course of Business, or agreed (iii) remain unpaid as of the Closing Date, excluding in each case, Closing Transaction Expenses;
(c) (i) Transfer Taxes, (ii) all liabilities and obligations for Taxes relating to be performed by Purchaser the Business, the Acquired Assets or its Subsidiaries the Assumed Liabilities for any Post-Closing Period and (including the Conveyed Subsidiaries and their Subsidiariesiii) Taxes for which Buyer is liable pursuant to Article VIII;
(d) all Liabilities with respect to products sold or services provided solely to the extent on connection with the Business on or prior to the Closing Date, including with respect to credits, returns or allowances and warranty liabilities;
(e) all other Liabilities arising out of or relating to Buyer’s ownership or operation of the Business and the Acquired Assets after the Closing; and
(f) all liabilities and obligations allocable to Buyer in accordance with the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letterthose under Article VIII.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon the terms and subject to all of the conditions of this Agreementcontained herein, at the Closing, upon the consummation of the transactions contemplated by this Agreement (collectively, the "Acquisition Transactions") the Purchaser shall (i) assume andassume, subject and agree to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, performperform and discharge, satisfy and discharge any and all only the following Liabilities of the Sellers or any of their Affiliates (including incurred in connection with Acquired Assets and the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct operation of the Business or in the Ordinary Course of Business, and no others (collectively, the "Assumed Liabilities"), such that the Sellers will incur no liability in connection therewith (without, however, diminishing any right of the Purchaser Indemnitees to obtain indemnification as provided pursuant to Article XII hereof), and the Purchaser shall forever indemnify the Seller Indemnitees with respect to and shall forever hold the Sellers and Seller Indemnitees harmless from and against all such Assumed Liabilities (again, without, however, diminishing any right of the Purchaser Indemnitees to obtain indemnification as provided pursuant to Article XII hereof), including but not limited to the following: the Liabilities of the Sellers with respect to periods after the Closing under and in connection with (A) the Leases with respect to the Leased Real Property and (B) the Owned IP Rights and the Licensed IP Rights; the Liabilities of the Sellers arising under the Purchased Assets Contracts with respect to periods after the Closing (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (aany Liability set forth on Schedule 2.4(ii) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to a breach by the Sellers of such Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities Contract that occurred prior to the extent arising out of, or Closing); the Liabilities that are attributable to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s ownership or its Affiliates’ (including operation of any Conveyed Subsidiary’s Acquired Assets or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant the Business with respect to Section 2.2(d)periods after the Closing; and
(i) the Liabilities set forth on Schedule 2.4(iv); liabilities arising in connection with the Legal Proceedings listed on Schedule 5.19 attached hereto (but not any of the items listed on the continuation portion of Schedule 5.19 titled "Proof of Claim Status - Unresolved Claims," not any of the items listed in the "Second Omnibus Objection to Allowance of Claims attached to Schedule 5.19, or titled "Proof of Claim Status - Unresolved Claims," or any of the items referred to on the "Order Granting the Reorganized Debtors' First Omnibus Objection to Allowance of Claims attached to Schedule 5.19) and liabilities arising in connection with any Legal Proceeding arising after the Closing with respect to an event, fact or circumstance that occurred or existed prior to the Closing, provided that if the Purchaser is required to pay any amount in respect of any such Legal Proceeding in excess of the amount, if any, accrued therefor on the Closing Date Working Capital Calculation, the Purchaser shall be entitled to reimbursement from the Indemnity Escrow for such excess amount as a Loss indemnifiable pursuant to Article XII hereof; provided, further, that nothing in this clause (v) shall preclude the Purchaser from seeking indemnification for any matter that may constitute a breach of any of the Sellers' representations and warranties hereunder; and provided further, that nothing herein (including without limitation this Section 2.4(i2.4(v)) shall result in the Purchaser from assuming any Excluded Liability; any Liabilities related to the Special Deferred Compensation Liabilities; any accrued employment-related Liabilities with respect to vacation, severance and other benefits owing as of the Determination Time, all of which obligations and liabilities shall be reflected in the Closing Date Working Capital Calculation prepared pursuant to Section 3.5(a) hereof; the Liabilities arising from or relating to the employment or services of any employee (i.e., accrued salaries, wages and associated items) with respect to incomplete pay periods as of the Determination Time, all of which obligations and liabilities shall be reflected in the Closing Date Working Capital Calculation prepared pursuant to Section 3.5(a) hereof, any accrued obligations for matching contributions or other related payable with respect to any Employee Benefit Plans to the extent reflected as a payable in the Closing Date Working Capital Calculation prepared pursuant to Section 3.5(a) hereof; provided, however, that it is acknowledged and agreed by the Sellers that the Purchaser is not becoming legally obligated under any of the Sellers' Employee Benefit Plans under this provision or any other provision of this Agreement, and that the obligation assumed hereby is an obligation by the Purchaser to pay, on behalf of the Sellers, the matching contribution or other related payable to the applicable third party plan, trustee or other Person; any accounts payable (including, for the avoidance of doubt, (i) invoiced accounts payable and (ii) accrued but uninvoiced accounts payable), and other accrued expenses owing as of the Determination Time and incurred in the Ordinary Course of Business; the portion of the Transfer Taxes payable by the Purchaser under Section 10.3; and any Tax reflected as a liability on the Final Closing Date Balance Sheet (but not any Tax referred to in item (vi) of Section 2.5 hereof). The Purchaser and the Seller Disclosure LetterSellers shall use their commercially reasonable efforts to obtain, or cause to be obtained, any consent or approval required for the purchase hereunder of any and all Purchased Contracts (without any obligation to make any payment to the other party to any of such Purchased Contracts).
Appears in 1 contract
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant Subject to the terms of this Agreement, including at the Xxxxxxxxxx Closing Purchaser shall assume all Liabilities liabilities and obligations
(i) of Seller under the Xxxxxxxxxx Contract arising from facts and circumstances occurring
(A) exclusively after the Xxxxxxxxxx Closing, or
(B) both before and after the Xxxxxxxxxx Closing, but solely to the extent transferred attributable to the post-closing occurrence, including in either case, without limitation, liabilities relating to warranties, repair or assumed replacement work or retained by Purchaser any other contractual obligations that accrue or its Subsidiaries become payable or performable pursuant to the terms of the Xxxxxxxxxx Contract, and for personal injuries and property damage,
(ii) that are specifically set forth in Schedule 1.4(a) to this Agreement,
(iii) related to the Xxxxxxxxxx Business or Xxxxxxxxxx Assets and arising from facts and circumstances occurring
(A) exclusively after the Xxxxxxxxxx Closing, or
(B) both before and after the Xxxxxxxxxx Closing, but solely to the extent attributable to the post-closing occurrence, including in either case, without limitation, liabilities for Taxes or Environmental, Health and Safety Liabilities, and
(iv) the transfer and other Taxes set forth in Section 6.6 and Section 6.13;7.15 hereof related to the transfers at the Xxxxxxxxxx Closing. Collectively, the liabilities set forth in (i) – (iv) above are referred to herein as the “Xxxxxxxxxx Liabilities”.
(b) Subject to the terms of this Agreement, at the WMATA Closing Purchaser shall assume all Liabilities in respect liabilities and obligations
(i) of any ActionSeller under the WMATA Contract arising from facts and circumstances occurring
(A) exclusively after the WMATA Closing, whether classor
(B) both before and after the WMATA Closing, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, but solely to the extent attributable to the post-closing occurrence, including in either case, without limitation, liabilities relating to warranties, repair or replacement work or any other contractual obligations that accrue or become payable or performable pursuant to the terms of the WMATA Contract, and for personal injuries and property damage,
(ii) that are specifically set forth in Schedule 1.4(b) to this Agreement,
(iii) related to the WMATA Business or WMATA Assets and arising out offrom facts and circumstances occurring
(A) exclusively after the WMATA Closing, or or
(B) both before and after the WMATA Closing, but solely to the extent relating toattributable to the post-closing occurrence, including in either case, without limitation, liabilities for Taxes or Environmental, Health and Safety Liabilities, and
(iv) the transfer and other Taxes set forth in Section 7.15 hereof related to the transfers at the WMATA Closing. Collectively, the Business or liabilities set forth in (i) – (iv) above are referred to herein as the operation or conduct of the Business prior to, on or after the Closing;“WMATA Liabilities”.
(c) Notwithstanding anything to the contrary contained herein, Purchaser shall not assume or be bound by or be obligated or responsible for any duties, responsibilities, commitments, expenses, obligations or liabilities of Seller (or which may be asserted against or imposed upon Purchaser as a successor or transferee of Seller or as an acquirer of the Xxxxxxxxxx Assets or the WMATA Assets or otherwise as a matter of Law) of any kind or nature, whether fixed or contingent, known or unknown, warranties, obligations or claims (collectively, the “Non-Assumed Liabilities”), other than the Xxxxxxxxxx Liabilities and the WMATA Liabilities. Subject to the foregoing, all of the following shall be considered Non-Assumed Liabilities for the purposes of this Agreement:
(i) any liability or obligation of Seller arising out of any Contract that (A) is required by the terms thereof to be discharged on or prior to the applicable Closing, or (B) relates to or arises out of a breach or default by Seller on or prior to the applicable Closing (including any event occurring at or prior to the applicable Closing that with the lapse of time or the giving of notice, or both, would become a breach or default under such Contract);
(ii) except for any and all sales and use, transfer, conveyance, recordation and filing fees, Taxes of the Conveyed Subsidiaries and their Subsidiaries andor assessments to be paid by Purchaser pursuant Section 7.15 hereof, without duplication, all other Liabilities any liability for Taxes imposed under the Xxxxxxxxxx Contract arising prior to the Xxxxxxxxxx Closing Date or under the WMATA Contract arising prior to the WMATA Closing Date;
(iii) any liability or obligation arising (whether arising before or after any Closing) under or with respect toto any Benefit Plan or any other compensation, policy or arrangement or collective bargaining agreement maintained, contributed to or entered into at any time by Seller or any of its Affiliates prior to such Closing or with respect to the employment of any employee, agent or independent contractor by Seller or any of its Affiliates (whether or not employed by Purchaser after such Closing), including any liability or obligation with respect to workers compensation, unemployment insurance premiums or any claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws;
(iv) any liability or obligation of Seller relating to the operation of Seller prior to the applicable Closing arising by operation of Law under any common Law or statutory doctrine (including successor liability or de facto merger);
(v) any liabilities of Seller to Employees arising out of or relating to triggered by the Purchased Assets or consummation of the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to transactions contemplated by this Agreement;
(dvi) all Liabilities any liability or obligation related to the Xxxxxxxxxx Business, the Xxxxxxxxxx Assets, the WMATA Business or the WMATA Assets arising from facts and circumstances occurring (A) exclusively before the applicable Closing or (B) both before and after the applicable Closing but solely to the extent arising out of, or attributable to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d)pre-Closing occurrence; and
(ivii) any Environmental, Health and Safety Liabilities of Seller that may exist or that may arise out of facts or circumstances existing prior to the Liabilities set forth in Section 2.4(iapplicable Closing.
(d) of the Seller Disclosure Letterhereby retains all Non-Assumed Liabilities.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Clean Energy Fuels Corp.)
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions (a) Effective as of this Agreement, at the Closing, Purchaser the Buyer shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 the following liabilities and Article VII, pay, perform, satisfy and discharge any and all Liabilities obligations of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, Seller relating to the extent resulting from or arising out of the pastUS Business (collectively, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include ):
(i) the following:obligations of the Seller under each Purchased Contract to which Seller is party, to the extent such obligations are not required to be performed on or prior to the Closing Date, are disclosed on the face of such Purchased Contract, and accrue and relate to the operations of the US Business subsequent to the Closing Date;
(ii) those liabilities of the Seller of the types listed on Exhibit A, to the extent and in the amount each such type is reflected on the Final Statement of Working Capital and applied for the purpose of determining the Final Adjustment; and
(iii) (a) all Liabilities to liabilities of the extent expressly assumed byBusiness reflected or reserved against in the Financial Statements, retained by Interim Financial Statements or agreed to be performed by Purchaser Statement of Working Capital or its Subsidiaries (including the Conveyed Subsidiaries notes thereto and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct liabilities of the Business prior tonot required by GAAP to be reflected or reserved against in the Financial Statement or Statement of Working Capital or the notes thereto, except as otherwise set forth in this Agreement; provided, however, Buyer shall only assume the Indebtedness expressly set forth on or after the Closing;Schedule 3.
(civ) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect toliabilities accruing, arising out of or relating to the Purchased Assets conduct or operation of the BusinessBusiness incurred subsequent to the date of the Financial Statements in the ordinary course of business consistent with past practice, except as otherwise specifically set forth in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(dv) all Liabilities liabilities accruing, arising out of or relating to the extent arising out of, conduct or to operation of the extent relating to, Business or the design, manufacture, testing, marketing, distribution, ownership or use or sale of Products prior to, on or the Assets from and after the Closing, including warranty obligations and irrespective of the legal theory assertedClosing Date;
(evi) all Liabilities any Taxes to suppliers and customers, in each case to be paid by the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the ClosingBuyer under this Agreement;
(fvii) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness liabilities of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever Seller under the Purchased Contracts and the Licenses to the extent arising out of, or relating tobe performed after, or in respect of the Conveyed Subsidiaries (or their Subsidiaries)periods following, the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d)Closing Date; and
(iviii) all product liability or related negligence claims (but excluding liabilities associated with warranty claims, repairs, exchanges or returns in the Liabilities ordinary course of business, which will be handled as set forth in Section 2.4(i6.15) in respect of products manufactured, marketed, distributed or sold by the Seller Disclosure LetterBusiness before the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Kopin Corp)
Assumption of Assumed Liabilities. Upon At the Closing and on the terms and subject to the conditions of set forth in this Agreement, at Buyer agrees to assume the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all following Liabilities of the Sellers or any of their Affiliates Company (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all executory Liabilities arising or to be performed after the Closing under all (i) Acquired Contracts and Acquired Leases, (ii) Acquired Contracts and Acquired Table of Contents Leases described in (i) to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to same are amended after the terms date of this Agreement in accordance with this Agreement, including all Liabilities (iii) Acquired Contracts and Acquired Leases entered into after the date of this Agreement in accordance with the provisions of this Agreement and (iv) those Acquired Contracts and Acquired Leases entered into after the date of this Agreement not in accordance with the provisions of this Agreement that Buyer expressly agrees to assume, in each case other than any Liability arising out of or relating to a breach of any Acquired Contract that occurred prior to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Closing;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent Liability arising out of, or to the extent relating to, the Business or under any Environmental Law arising from the operation or conduct of the Business prior toafter the Closing or the leasing, ownership or operation of the real property listed on Schedule 2.1(a)(i), as such schedule may be updated from time to time pursuant to Section 10.11(b) or Section 2.3(a), by Buyer or any other Purchasing Company after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries Company’s accounts payable for goods and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating services exclusively related to the Purchased Assets Business incurred in the Ordinary Course of Business that are either reflected on the Latest Balance Sheet or related to the Business, Business and incurred by the Company in each case, the Ordinary Course of Business between the date of the Latest Balance Sheet and the Closing (other than Seller Indemnified Taxes for which Seller Parent is liable pursuant accounts payable to this AgreementInsiders or Affiliates of the Company), and that remain unpaid without having given rise to a breach at the Closing;
(d) all Liabilities any Liability related to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;Rolled-Over Accrued Vacation; and
(e) all of the Liabilities to suppliers and customers, in each case of the Company related to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, Business and described on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their SubsidiariesSchedule 2.4(e), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities as such schedule may be updated from time to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities time pursuant to Section 2.2(d10.11(b)or Section 2.3(a); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 1 contract
Samples: Master Asset Purchase Agreement (Franklin Covey Co)
Assumption of Assumed Liabilities. Upon On the terms and subject to the conditions of set forth in this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 from and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from Buyer shall assume and shall satisfy, perform or arising out discharge when due all of the pastLiabilities of Seller in respect of, present or future otherwise arising from the ownership, operation, operation or use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii)Acquired Assets, other than the Excluded Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include , including the following:
following Liabilities: All Environmental Liabilities, other than the Excluded Environmental (a) Liabilities until such Excluded Environmental Liabilities become Assumed Liabilities as provided in Section 2.4(i) and, for avoidance of doubt, it is the intention of the Parties that (i) Environmental Liabilities described in Section 2.4(i)(B)(II), Section 2.4(i)(C) and Section 2.4(i)(D) are not and would never become Assumed Liabilities and (ii) Environmental Liabilities resulting from Dig Activities are Assumed Liabilities; Except as set forth in Section 2.4(c), all Liabilities related to the extent expressly assumed by, retained by (b) performance or agreed non-performance of contractual obligations or commitments to be performed or addressed, in each case first arising from and after the Closing Date under (i) the Assigned Contracts, the Assigned Leases, the Transferable Permits and the Assigned Intellectual Property, in each case in accordance with the terms thereof, except with respect to Taxes, which shall be assumed in accordance with Section 2.7, and (ii) the Contracts, commitments and Transferable Permits entered into by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant Seller with respect to the terms of this AgreementAcquired Assets during the Interim Period in accordance with Section 5.5; Except as set forth in Section 2.4(c), including all Liabilities related to the extent transferred (c) performance or non-performance of contractual obligations or commitments to be performed or assumed addressed, in each case first arising from and after the Closing Date under the Permitted Liens, other than under or retained by Purchaser or its Subsidiaries pursuant with respect to Section 6.6 the exercise of the Reserved Easements; All Liabilities first arising from and Section 6.13;
after the Closing Date (bi) all for any (d) compensation, benefits, employment Taxes, workers compensation benefits and other similar Public Service Company of New Hampshire dba Eversource Energy Docket DE 17-124 October 12, 2017 Attachment 2 Page 28 of 159 000165 EXECUTION VERSION Liabilities in respect of the Transferred Employees (including under the Generation CBA, any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out ofEmployee Benefit Plan of Buyer, or any other agreement, plan, practice, policy, instrument or document relating to the extent relating to, the Business or the operation or conduct any of the Business prior to, Transferred Employees) created or owing as a consequence of employment by Buyer on or after the Closing;
(c) all Closing Date, but not including any Liabilities for Taxes arising out of the Conveyed Subsidiaries CBA MOA, (ii) relating to the Transferred Employees which Buyer has assumed or for which Buyer is otherwise responsible under Section 5.8, and their Subsidiaries and(iii) in respect of any discrimination, without duplicationwrongful discharge, all other Liabilities for Taxes imposed with respect to, unfair labor practice or similar Claim under applicable employment Laws by any Transferred Employee arising out of or relating to acts or omissions occurring on or after the Purchased Assets Closing Date; All Liabilities for (i) Taxes (including, with respect to property Taxes, (e) payments in addition to or in lieu of Taxes, but not including the BusinessProperty Tax Stabilization Payments) relating to the ownership, operation, sale or use of the Facilities and the Acquired Assets, in each casecase first arising from and after the Closing Date, other than Seller Indemnified or the Assumed Liabilities and (ii) Taxes for which Seller Parent Buyer is liable pursuant to Section 2.7, Section 5.12 and Section 5.13; and All other Liabilities expressly allocated to Buyer in this Agreement;
(d) all Liabilities to the extent arising out of, Agreement or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness any of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterRelated Agreements.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Assumption of Assumed Liabilities. Upon In connection with the terms Contribution in Kind, Buyer will assume from and subject to the conditions of this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, and Buyer shall thereafter pay, perform and discharge, all debts, obligations and liabilities only to the extent resulting from or arising out of related primarily to the past, present or future ownership, operation, use operation or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii)Transferred Assets, other than Liabilities identified as Retained Liabilities in clauses the Excluded Liabilities, including the following (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as collectively, the “Assumed Liabilities”). The ) (each of which is an Assumed Liabilities shall also include Liability only to the following:extent related primarily to the operation or conduct of the Business or the Transferred Assets):
(a) all Liabilities to the extent expressly assumed bydebts, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries liabilities and their Subsidiaries) pursuant to the terms obligations of this AgreementSeller, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 accounts and Section 6.13notes payable;
(b) all Liabilities debts, liabilities and obligations under the Assigned Contracts and Permits included in respect the Transferred Assets;
(c) all debts, liabilities and obligations of any Action, whether class, individual Seller for Inventory ordered or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, committed prior to the extent Closing Date and delivered after the Closing Date;
(d) all debts, liabilities and obligations of Seller which relate to the Employees, including (i) liabilities relating to Seller’s employment of, termination of employment of, provision of benefits to, and compensation of employees of the Business, including any wrongful discharge or other wrongful employment practice, unfair labor practice, claims for benefits (including any liability for severance indemnity (trattamento di fine rapporto), 13th and 14th month salary, overtime pay, payroll taxes, unused vacation, social security, profit sharing or for claims arising under worker’s compensation Laws), or similar claims or causes of action; and (ii) liabilities relating to any collective bargaining agreement with or relating to any Employees, including the liabilities and obligations of Buyer set forth in (A) the Verbale di accordo dated April 20, 2004, among Seller, Buyer and the Unione degli Industriali dellla Provincia di Sondrio, (B) the Accordo dated April 20, 2004 among Buyer and the various signatories thereto and (C) the Verbale di accordo dated May 19, 2004, among Seller, Buyer and the union of “dirigenti” (collectively, the “Union Agreement”);
(e) except as set forth in Section 2.5(f), all debts, liabilities and obligations with respect to Actions arising out of, resulting from, or relating primarily to the extent relating to, the Business or the operation or conduct of the Business or the Transferred Assets, at Law or otherwise, including all debts, liabilities and obligations with respect to any claim, whether made before or after Closing, regarding whether Seller’s fuel dispensers which include a vapor recovery system infringe any of Gilbarco Inc.’s patents or patent applications on such vapor recovery system (the “Gilbarco Claims”);
(f) all Environmental Liabilities, except for those Environmental Liabilities identified in the Environmental Report and which are required to be remediated by applicable authorities as a result of Seller’s reporting to such applicable authorities such Environmental Liabilities (including any remediation that may be required by applicable authorities as a result of the October 2003 Site Characterization Plan submitted by Seller with respect to Talamona);
(g) all debts, liabilities and obligations to customers of the Business for orders outstanding as of the Closing Date;
(h) all debts, liabilities and obligations to customers of the Business under written warranty agreements given by Seller to its customers on or prior to the Closing Date relating to products sold or services rendered prior to the Closing Date;
(i) all debts, liabilities and obligations arising out of, resulting from, or relating to injuries to individuals or property as a result of the ownership, use or possession of any product manufactured, sold, leased or delivered by Seller relating primarily to the Business prior to, on or after the Closing;Closing Date; and
(cj) all Liabilities for Taxes of the Conveyed Subsidiaries debts, liabilities and their Subsidiaries andobligations, without duplicationwhether known, all other Liabilities for Taxes imposed with respect tounknown, arising accrued, contingent or otherwise, not otherwise enumerated above which arise out of or relating are related primarily to the Purchased ownership or operation of any Transferred Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products Business prior to, on or after the ClosingClosing Date without regard to any accruals set forth on the Financial Statements. Except for the Assumed Liabilities, including warranty Buyer will not assume any other debts, obligations and irrespective liabilities of the legal theory asserted;
(e) all Liabilities to suppliers and customersSeller, in each case to the extent whether arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on before or after the Closing;
(f) all accounts payable Closing Date, and all other Liabilitieswhether known or unknown, in each case included in the calculation of Final Business Working Capitalfixed, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (absolute, contingent, material or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out ofimmaterial, matured or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letterunmatured.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of set forth in this Agreement, at the ClosingEffective Time, Purchaser Buyer shall (i) assume andfrom Seller or its Affiliates, subject and shall agree to Section 2.5, Section 6.5, Section 6.6 and Article VII, fully pay, performdischarge and satisfy when due and perform in accordance with their terms, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after effective from the Closing, to only the extent resulting from obligations of Seller or its Affiliates set forth below, whether known or unknown, contingent or otherwise, whether currently in existence or arising out of the pasthereafter (collectively, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all Liabilities obligations of Seller or its Affiliates primarily related to the extent expressly assumed byBusiness or for the Purchased Assets arising from and after the Effective Time; provided, retained by however, that Buyer will not assume or agreed be responsible for any such Liabilities to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant prior to the terms of this AgreementEffective Time (subject to Section 2.3(c)), including all Liabilities that primarily relate to the extent transferred operation of any Business or events or occurrences prior to or assumed or retained by Purchaser or its Subsidiaries pursuant the Effective Time (subject to Section 6.6 and Section 6.132.3(c)), or that primarily arise from breaches of such Assigned Contracts or Permits or defaults under such Assigned Contracts or Permits prior to the Effective Time;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, liabilities and obligations resulting from actions taken after the Effective Time relating to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the ClosingPurchased Assets;
(c) all Liabilities accounts and notes payable, unbilled revenues, reimbursable costs and expenses and other claims for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed money due by Seller or its Affiliates solely with respect to, arising out of or relating to the Purchased Assets or the a Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities liabilities and obligations of Seller or any of its Affiliates for servicing warranty claims for Target Products sold prior to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory assertedEffective Time;
(e) all Liabilities to suppliers liabilities and customers, in each case obligations of Seller or any of its Affiliates pursuant to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;Fastrain Manufacturing Agreement; and
(f) all accounts payable and all other Liabilities, in each case included in the calculation severance obligations to employees of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Acquired Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon (a) Except as provided in Section 1.3(b), the terms Purchaser shall not assume, in connection with the transactions contemplated hereby, any liability or obligation of the Seller whatsoever, whether known or unknown, disclosed or undisclosed, accrued or hereafter arising, absolute or contingent, and subject to the conditions Seller shall retain responsibility for all such liabilities and obligations.
(b) Effective as of this Agreement, at the Closing, the Purchaser shall assume the following liabilities and obligations of the Seller (collectively, the “Assumed Liabilities”):
(i) the obligations of the Seller under each Assumed Contract, except to the extent such obligations are required to be performed prior to the Closing, or accrue and relate to the operation of the Seller’s business prior to the Closing; provided, however, that the Purchaser does not assume andany liabilities or obligations resulting from, subject arising out of, relating to Section 2.5or caused by any breach of contract, Section 6.5breach of warranty, Section 6.6 and Article VIItort, payinfringement, performviolation of any applicable Laws or environmental matters, satisfy and discharge including without limitation those arising under any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries applicable environmental, health and their Subsidiaries), whether arising prior to, on or after safety Laws occurring before the Closing, or any damages to third parties resulting from acts, events or omissions occurring prior to the Closing except to the extent resulting from the Purchaser’s or arising out of Parent’s acts or omissions following the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and Closing.
(ii) cause any trade account payable (except for any trade account payable owed to the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge Sole Stockholder or any and all of their respective Liabilities, in each case Affiliate of the foregoing clauses (iSeller or the Sole Stockholder) and (ii), other than Liabilities identified reflected on the Unaudited Interim Balance Sheet which remains unpaid as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:Closing; and
(aiii) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct current liabilities of the Business prior to, on or after Seller as of the Closing;
(civ) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Closing Date Indebtedness included in the calculation of Final Business Net Closing Date Cash Balance and all other Indebtedness of Statement, to the Conveyed Subsidiaries (or their Subsidiaries) that is extent it does not Funded Indebtednessexceed the Closing Date Indebtedness Threshold;
(gv) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect other liabilities of the Conveyed Subsidiaries (or their Subsidiaries)Seller, except for the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Specifically Excluded Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon From and after the terms Effective Time, Buyer shall assume from the Seller or the Selling Subsidiaries, as applicable, and subject to the conditions of this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, fully pay, performdischarge, satisfy and discharge any and all Liabilities of perform when due, only the Sellers following debts, liabilities, or any of their Affiliates obligations (including the Conveyed Subsidiaries and their Subsidiaries)collectively, whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all Liabilities to of the extent expressly assumed bydebts, retained by or agreed to be performed by Purchaser or its liabilities and obligations of Seller and the Selling Subsidiaries (including arising under the Conveyed Subsidiaries and their Subsidiaries) pursuant to Contracts included in the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Marine Assets;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior todebts, on or after the Closingliabilities and obligations assumed by Buyer pursuant to Section 5.4;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries [Reserved.]
(d) trade accounts payable and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Businessaccrued liabilities, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out ofreflected in the Net Working Capital on the Final Closing Statement, or to excluding, for the extent relating toavoidance of doubt, liabilities for Income Taxes of Seller and the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory assertedSelling Subsidiaries;
(e) all Liabilities to suppliers liabilities and customers, in each case obligations for the payment of any checks related to the extent arising out of, or Business issued prior to the extent relating to, Closing Date which have not been paid as of the Business, including in respect of any Products returned prior to, on or after the Closing;Closing Date; and
(f) all accounts payable other liabilities of Seller and all other Liabilities, in each case included the Selling Subsidiaries solely related to the Business incurred in the calculation of Final Business Working Capitalordinary course consistent with past practice in both type and amount (including, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries without limitation, United States worker’s compensation claims (or their Subsidiaries) that is not Funded Indebtedness;
subject to clause (g) all Environmental Liabilities of any nature whatsoever the definition of Designated Pre-Closing Liabilities)), excluding, for the avoidance of doubt, (i) liabilities for Taxes of Seller and the Selling Subsidiaries (except to the extent arising out of, or relating to, or such Taxes are reflected in respect of the Conveyed Subsidiaries Net Working Capital on the Final Closing Statement) and (or their Subsidiaries), ii) the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Asset Related Designated Pre-Closing Liabilities or the Retained Environmental Liabilities;
and (hiii) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant subject to Section 2.2(d); and
(i) the Liabilities set forth in 5.17, items 6, 7 and 8 on Section 2.4(i) 3.25 of the Seller Disclosure Letter. Buyer’s obligations under this Section 2.3 will not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or the Ancillary Agreements or any closing or other document contemplated by this Agreement or the Ancillary Agreements, any right or alleged right of indemnification hereunder or for any other reason.
Appears in 1 contract
Samples: Purchase Agreement (Teleflex Inc)
Assumption of Assumed Liabilities. Upon Subject to the terms --------------------------------- and subject to conditions set forth herein, and in reliance upon the conditions of this Agreementrepresentations and warranties contained herein, at the Closing, Purchaser shall in consideration for the sale, assignment, transfer, conveyance and delivery of the Transferred Assets to Buyer, Buyer agrees to assume and undertake to pay, perform and discharge, in accordance with the terms thereof, only the following Liabilities incurred in the Ordinary Course of Business (the "Assumed Liabilities"):
(a) all contractual obligations (other than obligations relating to Excluded Liabilities) of the Sellers and their Subsidiaries arising under Leases and Contracts that constitute Transferred Assets other than any Liabilities (i) assume andwhich relate to any Lease or Contract as to which Sellers are in default under such obligations on the Closing Date (or would be in default on the Closing Date, subject assuming the giving of any applicable notices and the lapse of any applicable waiting periods under the Leases or Contracts), it being intended that the portion of any Liabilities under such Leases and Contracts as to which Sellers are not in default shall not be excluded hereby, (ii) which are due and payable on or before the Closing Date or (iii) which constitute Excluded Liabilities;
(b) all Liabilities expressly assumed by Buyer pursuant to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and ------- 9.8; ---
(c) all Liabilities (other than Excluded Liabilities) Related to the Business which are not included in clause (a) and (b) of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries)this Section 3.1, whether arising prior to, on or after the Closing, but ----------- only to the extent resulting from or arising out of and in the past, present or future ownership, operation, use or conduct of amounts included in Net Working Capital in accordance with Section 4.2; and -----------
(d) all Liabilities Related to the Business or to the Purchased Assets (including extent arising from Buyer's actions from and after the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), Closing Date. Buyer will assume no Liabilities whatsoever other than Liabilities those identified as Retained Liabilities in clauses (a) through (gd) of this Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”)3.1. The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.-----------
Appears in 1 contract
Samples: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions Effective as of this Agreement, at the Closing, the Purchaser shall assume, and hereby agrees to pay, perform and discharge, the liabilities and obligations of the Seller and the Seller Subsidiaries related to the Business as listed below (collectively, the “Assumed Liabilities”):
(a) all liabilities, obligations and product warranties (in each case, whether ongoing or contingent) arising under or with respect to or contained in the Assumed Contracts, including those Assumed Contracts under which the Seller or the Seller Subsidiaries have not rendered performance prior to the Closing, including (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of liabilities and obligations vis-à-vis customers to deliver products or vis-à-vis suppliers as well as any other similar liabilities and obligations under the Sellers or any of their Affiliates respective Assumed Contracts (including the Conveyed Subsidiaries such as forecast, investment and their Subsidiaries), whether arising volume commitments that arose prior to, on or after to the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilitiesliabilities and obligations vis-à-vis customers arising from product warranty claims, in each case whether expressed or implied, that result from performances made by or on behalf of the foregoing clauses Seller or the Seller Subsidiaries prior to the Closing, and all other similar liabilities and obligations that arise prior to the Closing, provided that any such liabilities and obligations described under (iii) above shall be limited to US$20,000,000 (the “Warranty Liability Cap”) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of any excess amount shall be deemed excluded from the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities (and, for the avoidance of doubt, shall also include the following:
(a) all be Excluded Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of under this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13);
(b) all Liabilities in respect of any Actionliabilities, whether classclaims, individual or otherwise in naturesuits, in law or in equityactions, whether or not presently threatenedinvestigations and obligations (i) resulting from, asserted or pending, to the extent arising out of, or related to (x) the extent relating to, the Business Acquired Assets or the operation ownership or use thereof, (y) the sale or provision of Business Products, or (z) the conduct of the Business prior toby the Purchaser, on or in the case of clauses (x) through (z), after the Closing, or (ii) specified on Schedule 1.3(b) of the Seller Disclosure Schedules;
(c) except as otherwise expressly set forth in Section 5.6, all Liabilities for Taxes liabilities related to the employment of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising Transferred Employees that arise out of or relating service to the Purchased Assets Purchaser or any Purchaser Designee after the BusinessClosing, in each caseincluding any liability resulting from the transfer or termination of any Transferred Employee’s employment with the Purchaser or any Purchaser Designee, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;as applicable; and
(d) all Liabilities liabilities related to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities insurance policies set forth in Section 2.4(iSchedule 1.3(d) of the Seller Disclosure LetterSchedules as and to the extent applicable to the Transferred Employees and all liabilities related to the rolled-over severances related to the Transferred Employees.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon Subject to the terms and subject to the conditions of set forth in this Agreement, at the Closing, Purchaser Company shall (i) assume and, subject and agree to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy honor and discharge any when due, and take all action necessary or appropriate under Applicable Law to assume, effective on or prior to the Distribution Date, all Liabilities arising primarily from or primarily in connection with the ownership, acquisition, conduct or operation (past, present or future) of the Sellers Transferred Businesses (or any businesses, assets or operations managed or operated by FTX or FRP or any past or present Affiliate thereof that have been sold, liquidated, merged or otherwise disposed of their Affiliates or discontinued prior to the Distribution Date to the extent that such businesses, assets or operations would have been part of the "Transferred Businesses" had they been owned by FTX or FRP on the Distribution Date (including such businesses, assets or operations being herein referred to as the Conveyed Subsidiaries and their Subsidiaries"Prior Businesses")) or any Transferred Assets or relating primarily to the ownership or use of the Transferred Assets, whether arising prior tobefore, on or after the ClosingDistribution Date and whether related to the current, past or future operations of the Transferred Businesses, other than Excluded Liabilities (collectively, the "ASSUMED LIABILITIES"). Without limitation of the foregoing, Assumed Liabilities include, to the extent resulting from that they do not include any Excluded Liabilities:
(a) Any and all Liabilities reflected on the Balance Sheet or incurred after the date of the Balance Sheet in connection with the Transferred Businesses or any Transferred Asset other than Excluded Liabilities;
(b) Liabilities in respect of present or former FTX or FRP employees, to the extent specifically assumed by the Company pursuant to the Employee Benefits Agreement;
(c) Any and all Liabilities primarily arising out of the contracts and agreements described in Section 3.01(a)(viii) above;
(d) All Liabilities primarily related to, primarily associated with or arising out of (i) the past, present or future ownershipoccupancy, operation, use or conduct control of any of the Real Property or any other real property occupied, operated, used or controlled by the Prior Businesses (the "Prior Business or the Purchased Assets (including the Shares) and Real Property"), (ii) cause the Conveyed Subsidiaries and their Subsidiaries operations of the Transferred Businesses or the Prior Businesses (or in each case, any predecessor thereto, but in every such case, only with respect to pay, perform, satisfy and discharge any and all that portion of their respective Liabilitiessuch predecessors' businesses that now constitute the Transferred Businesses or previously constituted the Prior Businesses), in each case incurred under or imposed by any Environmental Law (including without limitation any Release or threatened Release of any Contaminant on, in, at, to, beneath or from the Real Property or any Prior Business Real Property, including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder or any conditions whatsoever on, in, at, under or in the vicinity of such real property), (iii) the generation, handling transportation, storage, discharge or disposal of any Contaminant primarily in connection with the Transferred Businesses or the Prior Businesses, (iv) any Remedial Action required under any Environmental Law primarily in connection with the Transferred Businesses or the Prior Businesses; or (v) any violation of any Environmental Law primarily in connection with the operations of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of Transferred Businesses or the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:Prior Businesses; and
(ae) all Any Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating related to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities litigation to the extent arising out of, or related to the extent relating tocurrent, the design, manufacture, testing, marketing, distribution, use past or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective future operations of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterTransferred Businesses.
Appears in 1 contract
Samples: Contribution and Distribution Agreement (Freeport McMoran Sulphur Inc)
Assumption of Assumed Liabilities. Upon the terms Except for any Excluded Liabilities, and subject to Section 2.4, from and after the conditions of this AgreementEffective Time, at Buyer shall assume from the ClosingSeller or the Selling Subsidiaries, Purchaser shall (i) assume andas applicable, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, fully pay, performdischarge, satisfy and discharge any perform in accordance with their terms, all debts, liabilities, or obligations (whether now existing or hereafter arising and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior toout of occurrences, events or incidents occurring before, on or after the ClosingEffective Time and whether primary or secondary, direct or indirect, known or unknown, fixed or contingent), to the extent resulting from such debts, liabilities or arising obligations arise out of the pastBusiness as currently or previously conducted at the GMS Facilities by the Seller, present or future ownership, operation, use or conduct any of the Business Selling Subsidiaries, or the Purchased GMS Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include , including (to the extent that the same are not Excluded Liabilities) the following:
(a) all Liabilities of the debts, liabilities and obligations of Seller and the Selling Subsidiaries arising under or relating to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including Contracts included in the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13GMS Assets;
(b) all Liabilities in respect of any Actionthe debts, whether classliabilities and obligations assumed by Buyer pursuant to Section 5.4 and the other debts, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, liabilities and obligations relating to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the ClosingGMS Employees;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, liabilities whether arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior tobefore, on or after the ClosingEffective Time with respect to all actions, suits, proceedings, disputes, claims (including products liability claims) or investigations that relate to the operation of the Business at the GMS Facilities or the GMS Assets, at law, in equity or otherwise, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customersactions, in each case to the extent arising out ofsuits, proceedings, disputes, claims or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities investigations set forth in Sections 3.7, 3.8, 3.9 and 3.16 of the Seller Disclosure Letter that are not listed in Section 2.4(i) 2.4 of the Seller Disclosure Letter; and
(d) third party claims relating to the operation of the Business at the GMS Facilities for product returns, exchanges and rejects or relating to services rendered as part of the Business. Buyer’s obligations under this Section 2.3 will not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or the Ancillary Agreements or any closing or other document contemplated by this Agreement or the Ancillary Agreements, any right or alleged right of indemnification hereunder or for any other reason.
Appears in 1 contract
Samples: Purchase Agreement (Teleflex Inc)
Assumption of Assumed Liabilities. Upon Subject to the terms and subject to the conditions of set forth in this Agreement, at the Closing, Purchaser Assignee shall (i) assume and, subject and agree to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy honor and discharge any when due, and take all action necessary or appropriate under Applicable Law to assume, effective on or prior to the date hereof, all Liabilities arising from or in connection with the ownership, acquisition, conduct or operation (past, present or future) of the Sellers Transferred Businesses (or any predecessor to the Transferred Businesses) or any Assets or relating to the ownership or use of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries)Assets, whether arising prior tobefore, on or after the Closing, date hereof and whether related to the extent resulting from current, past or future operations of the Transferred Businesses (collectively, the "Assumed Liabilities"). Without limitation of the foregoing, Assumed Liabilities include:
(a) Any and all Liabilities related to the contracts and agreements described in Section 2 above;
(i) All Liabilities related to, associated with or arising out of (A) the past, present or future ownershipoccupancy, operation, use or conduct control of any of the Business Leased Real Property, (B) the operations of the Transferred Businesses (or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilitiespredecessor thereto), in each case incurred under or imposed by any Environmental Law (including without limitation any Release or threatened Release of any Contaminant on, in, at, to, beneath or from the Leased Real Property, including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder or any conditions whatsoever on, in, at, under or in the vicinity of such real property), (C) the generation, handling transportation, storage, discharge or disposal of any Contaminant in connection with the Transferred Businesses, (D) any Remedial Action required under any Environmental Law in connection with the Transferred Businesses; or (E) any violation of any Environmental Law in connection with the operations of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the ClosingTransferred Businesses;
(c) all Liabilities for Any sales, use, transfer, stamp, recording, documentary or similar Taxes or any fees and disbursements of counsel, accountants, real estate agents, appraisers, financial advisors, actuaries, consultants or title companies or other similar charges, in each case arising out of the Conveyed Subsidiaries and their Subsidiaries assignment, transfer or delivery to the Company of the Transferred Businesses or Assets pursuant to Section 2 in each case; and, without duplication, all other
(d) Any Liabilities for Taxes imposed with respect to, arising out of or relating related to litigation related to the Purchased Assets current, past or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective future operations of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterTransferred Businesses.
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Freeport McMoran Sulphur Inc)
Assumption of Assumed Liabilities. Upon At the Closing and on the terms and subject to the conditions of set forth in this Agreement, at Buyer agrees to assume the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all following Liabilities of the Sellers or any of their Affiliates Company (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
): (a) all executory Liabilities arising or to be performed after the Closing under all (i) Acquired Contracts and Acquired Leases, (ii) Acquired Contracts and Acquired 15 Table of Contents Leases described in (i) to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to same are amended after the terms date of this Agreement in accordance with this Agreement, including all Liabilities (iii) Acquired Contracts and Acquired Leases entered into after the date of this Agreement in accordance with the provisions of this Agreement and (iv) those Acquired Contracts and Acquired Leases entered into after the date of this Agreement not in accordance with the provisions of this Agreement that Buyer expressly agrees to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in natureassume, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all each case other Liabilities for Taxes imposed with respect to, than any Liability arising out of or relating to a breach of any Acquired Contract that occurred prior to the Purchased Assets Closing; (b) any Liability arising under any Environmental Law arising from the operation of the Business after the Closing or the Businessleasing, ownership or operation of the real property listed on Schedule 2.1(a)(i), as such schedule may be updated from time to time pursuant to Section 10.11(b) or Section 2.3(a), by Buyer or any other Purchasing Company after the Closing; (c) all of the Company’s accounts payable for goods and services exclusively related to the Business incurred in each case, the Ordinary Course of Business that are either reflected on the Latest Balance Sheet or related to the Business and incurred by the Company in the Ordinary Course of Business between the date of the Latest Balance Sheet and the Closing (other than Seller Indemnified Taxes for which Seller Parent is liable pursuant accounts payable to this Agreement;
Insiders or Affiliates of the Company), and that remain unpaid without having given rise to a breach at the Closing; (d) all Liabilities any Liability related to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations Rolled-Over Accrued Vacation; and irrespective of the legal theory asserted;
(e) all of the Liabilities to suppliers and customers, in each case of the Company related to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, Business and described on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their SubsidiariesSchedule 2.4(e), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities as such schedule may be updated from time to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities time pursuant to Section 2.2(d10.11(b)or Section 2.3(a); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 1 contract
Samples: Master Asset Purchase Agreement
Assumption of Assumed Liabilities. Upon (a) Subject to the terms and subject to the conditions of this Agreement, at the Closing, Purchaser shall assume the Company's liabilities and obligations (i) assume andunder the Contracts (other than Excluded Contracts (as defined below)) listed on Schedule 2.16 hereto arising exclusively from, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior accruing exclusively with respect to, on or the period after the Closing, (ii) that constitute current liabilities incurred in the ordinary course of business of the type set forth as current liabilities in the Base Unaudited Financial Statements (as defined below) and (iii) to the customers listed on Schedule 1.5 hereto for returns to the extent resulting from consistent with the Company's current return policies and procedures (a copy of which is attached hereto as Schedule 1.5(a)) ("RETURN LIABILITIES") (the "ASSUMED LIABILITIES").
(b) Notwithstanding anything to the contrary contained herein, Purchaser shall not assume or arising out be bound by or be obligated or responsible for any duties, responsibilities, commitments, expenses, obligations or liabilities of the past, present Company or future ownership, operation, use relating to the Acquired Assets or conduct the Business (or which may be asserted against or imposed upon Purchaser as a successor or transferee of the Company or as an acquirer of the Acquired Assets or the Business or otherwise as a matter of law) of any kind or nature (fixed or contingent, known or unknown, warranties, obligations or claims) (collectively, the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii"NON-ASSUMED LIABILITIES"), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) the Assumed Liabilities. Without limitation of Section 2.5 (the foregoing, all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The following shall be considered Non-Assumed Liabilities shall also include for the followingpurposes of this Agreement:
(ai) all Liabilities any liability or obligation arising out of any Contract that (A) subject to Section 1.7 hereof, was not capable of being assigned to Purchaser as of the Closing until such time that such Contract has effectively been assigned, or the benefits thereof made available, to Purchaser, (B) is required by the terms thereof to be discharged on or prior to the extent expressly assumed byClosing, retained (C) relates to or arises out of a breach or default by the Company on or agreed prior to the Closing (including any event occurring at or prior to the Closing that with the lapse of time or the giving of notice, or both, would become a breach or default) under any Contract or to any products or services provided or to be performed provided by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of Company under any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, such Contract arising out of or relating to any time on or prior to the Purchased Assets Closing Date or (D) is specified on Schedule 1.5(b) hereto (the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement"EXCLUDED CONTRACTS");
(dii) all Liabilities any liability or obligation for returns to the extent customers other than Return Liabilities;
(iii) any liability for Taxes;
(iv) any liability or obligation arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on (whether arising before or after the Closing) under or with respect to any Benefit Plan (as defined in Section 2.7(b) hereof) or any other compensation or employee benefit plan, policy or arrangement or collective bargaining agreement maintained, contributed to or entered into at any time by the Company or any of its Affiliates or with respect to the employment of any Employee, agent or independent contractor by the Company or any of its Affiliates (whether or not employed by Purchaser after the Closing), including warranty obligations and irrespective of the legal theory assertedany liability or obligation with respect to workers compensation, unemployment insurance premiums or any claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws, except in connection with any assumed Contract hereunder;
(ev) all Liabilities to suppliers and customers, in each case any liability or obligation relating to the extent arising out of, or operation of the Company prior to the extent relating toClosing arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger), the Business, including in respect of any Products returned prior to, on or after the Closingother than Return Liabilities;
(fvi) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (any liability or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or obligation in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Excluded Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(ivii) any liabilities to employees or others under any provisions relating to changes of control or the Liabilities set forth in Section 2.4(ilike.
(c) of the Seller Disclosure LetterThe Company hereby irrevocably waives and releases, and has caused its Affiliates to waive and release, Purchaser from all Non-Assumed Liabilities, including any liabilities or obligations created or which arise by statute or common law.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of set forth in this Agreement, at the Closing, Purchaser Buyer shall (i) assume andfrom Seller or its Affiliates, subject and shall agree to Section 2.5, Section 6.5, Section 6.6 and Article VII, fully pay, performdischarge and satisfy when due and perform in accordance with their terms, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after effective from the Closing, to only the extent resulting from obligations of Seller or its Affiliates set forth below, whether known or unknown, contingent or otherwise, whether currently in existence or arising out hereafter (collectively, the “Assumed Liabilities”):
(a) all obligations of the past, present Seller or future ownership, operation, use or conduct of its Affiliates related to the Business or the Purchased Assets arising from and after the Closing; provided, however, that Buyer will not assume or be responsible for any such Liabilities to be performed prior to the Closing (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries subject to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (iiSection 2.4(d)), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant that they relate to the terms operation of this Agreementthe Business or events or occurrences prior to Closing (subject to Section 2.4(d)), including all Liabilities or to the extent transferred that they arise from breaches of such Assigned Contracts or Permits or defaults under such Assigned Contracts or Permits prior to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Closing;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the ClosingCurrent Liabilities;
(c) all Liabilities for Taxes of liabilities and obligations resulting from actions taken after the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or Closing relating to the Purchased Assets or Business (for the Business, in each caseavoidance of doubt, other than Pre-Closing Taxes and Transfer Taxes allocated to Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreementunder Section 3.2(a));
(d) all Liabilities liabilities and obligations of Seller or any of its Affiliates for servicing warranty claims for Target Products sold prior to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities liabilities and obligations of Seller or any of its Affiliates relating to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed ContractsPurchased Assets after the Closing; provided, including Purchaser’s however, that Buyer will not assume or its Affiliates’ (including be economically responsible for any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant Pre-Closing Taxes and Transfer Taxes allocated to Seller under Section 2.2(d3.2(a); and
(if) the Liabilities set forth in Section 2.4(i) any liabilities or obligations relating to or arising out of the Seller Disclosure Lettertermination or retention of employment of any Business Employee to whom Buyer fails to make an offer of employment in accordance with Section 6.13(a), including any liabilities associated with any claims for severance, discharge indemnity, equity compensation, compensation for unfair dismissal or wrongful termination, and payments in lieu of notice and other payments for social security including any shortfall of social security contributions thereof) (including the employer portion of any payroll, social security, unemployment or similar Taxes related thereto).
Appears in 1 contract
Assumption of Assumed Liabilities. Upon Effective as of the terms Closing, and subject to the terms and conditions of this Agreement, at the Closing, Purchaser shall assume only the following liabilities and obligations (i) assume andcollectively, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:):
(a) all Liabilities liabilities and obligations of the Seller under each Assumed Contract but only to the extent expressly assumed by, retained by or agreed such liabilities and obligations (i) are required to be performed by Purchaser or its Subsidiaries after the Closing, (including the Conveyed Subsidiaries ii) (x) accrue and their Subsidiaries) pursuant relate to the terms operations of this Agreement, including all Liabilities the Business on or subsequent to the extent transferred Closing Date or (y) have been accrued for in the Financial Statements, and (iii) do not arise from or relate to a breach or assumed alleged breach by the Seller or retained by Purchaser any of its Affiliates of any obligations under such Assumed Contract on or its Subsidiaries pursuant prior to Section 6.6 and Section 6.13the Closing;
(b) all Liabilities in liabilities and obligations with respect to trade accounts payable of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pendingthe Seller primarily related to the Business, to the extent arising out of, or to that such liabilities are included in the extent relating to, the Business or the operation or conduct calculation of the Business prior to, on or after the ClosingBusiness’ Final Book Value;
(c) all Liabilities for Taxes liabilities and obligations with respect to any homes of the Conveyed Subsidiaries Seller that are under construction, under development or completed by the Seller, other than any homes sold and their Subsidiaries andclosed by the Seller prior to the Closing (each such home, a “Sold Home”), including, without duplicationlimitation, all other Liabilities for Taxes imposed with respect any liabilities and obligations relating to, resulting from, or arising out of any product liability, warranty liability or relating similar claim for damage, loss, reimbursement, indemnity, repair, cost or expense (including with respect to the Purchased Assets Warranty Work), which arises out of or the Businessis based upon any express or implied representation, in each casewarranty, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreementagreement or guaranty, or construction defect;
(d) for any period after the two (2) year anniversary of the Closing Date, all Liabilities liabilities and obligations with respect to the extent arising out ofSold Homes, or to the extent including, without limitation, relating to, the designresulting from, manufactureor arising out of any product liability, testingwarranty liability or similar claim for damage, marketingloss, distributionreimbursement, use indemnity, repair, cost or sale expense (including with respect to Warranty Work), which arises out of Products prior toor is based upon any express or implied representation, on warranty, agreement or after the Closingguaranty, including warranty obligations and irrespective of the legal theory asserted;or construction defect; and
(e) all Liabilities to suppliers liabilities and customers, in each case obligations to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities expressly set forth in Section 2.4(i6.3(d), Section 6.4 or Section 6.10; or (ii) entered into in accordance with the last sentence of the Seller Disclosure LetterSection 1.7.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smith Douglas Homes Corp.)
Assumption of Assumed Liabilities. Upon Subject to Section 2.4, in connection with the terms and subject to purchase by Buyer of the conditions of this AgreementAcquired Assets, at the Closing, Purchaser Buyer shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, thereafter pay, perform, satisfy perform and discharge any all debts, obligations and all Liabilities liabilities of Seller and the Sellers Subsidiaries to the extent relating to the Business or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries)Acquired Assets, whether arising prior to, on before or after the ClosingClosing Date, and whether known or unknown, fixed, absolute, contingent, material or immaterial, matured or unmatured, to the extent resulting from or arising out of the pastnot an Excluded Liability, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and following, to the extent not an Excluded Liability (ii) cause collectively, the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “"Assumed Liabilities”). The Assumed Liabilities shall also include the following:"):
(a) all Liabilities to liabilities and obligations of Seller under the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries Contracts (including other than the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Shared Contracts);
(b) the liabilities and obligations of Seller under the Shared Contracts to the extent such liabilities and obligations are to be assumed by Buyer pursuant to Section 5.5;
(c) all Liabilities in debts, liabilities and obligations of the Business for Inventory ordered or committed prior to the Closing Date and delivered on or after the Closing Date;
(d) all Accounts Payable;
(e) except for Excluded Liabilities, all liabilities and obligations of Seller to the extent related to the Employees;
(f) all debts, liabilities and obligations with respect of any Actionto Taxes allocated to Buyer pursuant to Section 2.12 or Section 5.10;
(g) all debts, whether classliabilities and obligations with respect to all actions, individual suits, proceedings, disputes, claims or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, investigations to the extent arising out of, resulting from, or relating to the extent relating to, the Business or the operation Acquired Assets, at law, in equity or conduct of otherwise, except for debts, liabilities and obligations with respect to the Business prior matters on Schedule 2.4(g); and
(h) all debts, liabilities and obligations to the extent attributable to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, the ownership or to the extent relating to, the design, manufacture, testing, marketing, distribution, use operation of any Acquired Assets or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon the terms and subject to the conditions of this Agreement, at (a) At the Closing, Purchaser shall (i) assume andassume, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries agree to pay, perform, satisfy fulfill and discharge discharge, to the extent they are not Excluded Liabilities, the following obligations, and only the following obligations, of Sellers (collectively, the “Assumed Liabilities”):
(i) all obligations and liabilities which (i) arise or accrue after the Closing and which relate to events which transpire subsequent to the Closing or (ii) are scheduled to arise or accrue subsequent to the Closing (whether or not related to any and all of their respective Liabilitiesevent which transpires subsequent to the Closing), in each case case, under the Real Property Lease, the Personal Property Leases, the Assumed Contracts and Assumed Permits;
(ii) all customer Contracts, bids and proposals and other customer obligations related to the Business entered into by a Seller in the Ordinary Course of Business; provided that Purchaser shall not assume, and each Seller shall retain and perform and/or pay, any customer Contract which, over the remaining term of the foregoing clauses Contract, has a negative gross margin or which would impose on Purchaser an extraordinary financial obligation beyond what is reasonable or customary in the industry in which a Seller operates;
(iiii) all ongoing warranty obligations of SOAdesk, so long as Purchaser is reimbursed for costs associated with performing such warranty work, as provided herein; and
(iv) all trade accounts payable and accrued expenses incurred by SOAdesk in connection with the Business in the Ordinary Course of Business and in accordance with this Agreement subsequent to the date hereof and through the Closing Date, and included within the calculation of Net Working Capital. (iib) Except as provided in Section 2.3(a), other than Liabilities identified as Retained Liabilities Purchaser shall not assume, in clauses connection with the transactions contemplated hereby, any liability or obligation of a Seller whatsoever, whether known or unknown, disclosed or undisclosed, accrued or hereafter arising, absolute or contingent, and Sellers shall retain responsibility for all such liabilities and obligations (a) through (g) of Section 2.5 (with all of the foregoing Liabilities being collectively such unassumed liabilities and obligations referred to herein as the “Assumed Excluded Liabilities”). The Assumed Excluded Liabilities shall also include will include, without limitation, any of the followingfollowing liabilities and obligations:
(ai) all Liabilities any liabilities or obligations for Indebtedness of a Seller;
(ii) any liabilities for foreign, federal, state and local Taxes of a Seller;
(iii) any liabilities or obligations under the Real Property Lease, the Personal Property Leases or Contracts that arose or accrued prior to the Closing;
(iv) any liabilities or obligations arising out of any legal action, suit, proceeding or investigation pending as of the Closing or commenced after the Closing and to the extent expressly assumed by, retained by arising out of any occurrence or agreed event happening prior to be the Closing;
(v) any Environmental Liability or any liabilities or obligations arising out of a Seller’s compliance or non-compliance with any Law;
(vi) any liabilities (other than Assumed Liabilities) to which Purchaser or any of the other Purchaser Indemnified Parties may become subject and that arises from or relates to any Product produced or sold or any services performed by a Seller prior to Closing;
(vii) any liabilities to the extent arising out of employment, employment grievances or termination of employment of any persons employed by a Seller on or before the Closing Date, including any workmen’s compensation claims relating to events which transpired on or before the Closing Date (whether or not known or reported as of the Closing Date), or any bonus, retention, severance or similar payment that Seller is obligated to make to any current or former employee, director, consultant or other Person as a result of the acquisition of the Assets or the Business;
(viii) any liabilities to the extent Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) is indemnified therefor pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(bix) all Liabilities in respect any liabilities under any employee benefit or welfare plan covering any present or former employee of a Seller or any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
their respective Affiliates (c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries andincluding, without duplicationlimitation, all other Liabilities for Taxes imposed with respect to, arising out of or any liabilities relating to the Purchased Assets any health care plans or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(dbenefits); and
(ix) any obligations to the Liabilities set forth extent arising under or in Section 2.4(i) respect of the Seller Disclosure Letterany Excluded Asset, or otherwise described on Schedule 2.3(b).
Appears in 1 contract
Assumption of Assumed Liabilities. Upon the terms and subject (a) Except to the conditions of extent specified in Section 2.4(b), the Buyer will not assume, in connection with the transactions contemplated by this Agreement, at any liability or obligation of the ClosingCompany whatsoever, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy the Company will retain responsibility for all of its liabilities and discharge any obligations and all Liabilities of liabilities and obligations arising from the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct operations of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred otherwise prior to or assumed on the Closing Date, whether or retained by Purchaser not accrued and whether or its Subsidiaries pursuant to Section 6.6 and Section 6.13;not disclosed.
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, As the sole exception to the extent arising out ofprovisions in Section 2.4(a), or to effective as of the extent relating toclose of business on the Closing Date, the Business Buyer will assume and agree to pay, discharge or perform, as appropriate, the operation or conduct following liabilities and obligations of the Business prior toCompany, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating tocollectively, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other "Assumed Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and"):
(i) the accounts payable of the Company existing as of the Closing Date, provided that in no event shall the aggregate amount of the obligations being assumed pursuant to this clause (i) exceed $6,400,000, provided further that in the event the accounts payable of the Company exceed $6,400,000, the Buyer may select the accounts payable (equal to $6,400,000) that it will assume;
(ii) the obligations of the Company under the Master Lease Agreement (the "Equipment Lease") dated September 8, 2000, by and between Comdisco, Inc., a Delaware corporation ("Comdisco"), as lessor and the Company as lessee, provided that (x) the Equipment Lease or the benefits thereof be assigned by the Company to the Buyer, (y) any other agreements or the benefits thereof relating to the Equipment Lease be assigned by the Company to the Buyer, and (z) in no event shall the obligations assumed hereunder exceed $3,200,000 plus accrued interest between the date hereof and the Closing Date;
(iii) all obligations of the Company under the Assumed Contracts and Licenses and Company Intellectual Property ("Assumed Commitments") to be paid or performed on and after the Closing Date, but not including any liabilities or obligations arising out of or related to nonperformance or breach by the Company under the Assumed Commitments on or prior to the Closing Date ("Default Obligations"); provided that, Default Obligations shall be Assumed Liabilities set forth in Section 2.4(ito the extend they are solely the result of non-payments of amounts due and are assumed pursuant to clause (i) or clause (vi) of this Section 2.4(b); provided for the Seller Disclosure Letteravoidance of doubt, that the Nextream Contracts (as defined below) shall not be assumed;
(iv) the obligations of the Company under the Subordinated Loan and Security Agreement (the "Comdisco Loan") dated as of September 8, 2000, by and between the Company as borrower and Comdisco as lender, provided in no event shall the obligations assumed pursuant to this clause (iv) exceed $3,940,000 plus accrued interest between the date hereof and the Closing Date and the Buyer shall have no obligations under the conversion features of the Comdisco Loan;
(v) the reimbursement obligation of the Company under that certain Guaranty of Lease (the "Butler Guaranty"), dated as of January 4, 2000, by anx xxxxeen the Company and Butler International, Inc., a Maryland corporation ("Xxxxxx"), as guarantor, provided that (y) as of the Closing Date there are no amounts then due or payable under the Butler Guaranty equal zero dollars ($0) and (z) the oxxxxxxions assumed pursuant to this clause (v) shall not exceed $450,000;
(vi) those accrued liabilities and expenses of the Company, incurred in the normal course of business, excluding interest accrued under the Bridge Loan, provided that in no event shall the obligations assumed pursuant to this clause (vi) exceed $1,500,000;
(vii) the outstanding interest and principal of the Bridge Loan; and
(viii) all liabilities for Taxes for which Buyer is liable pursuant to Section 7.14.
Appears in 1 contract
Assumption of Assumed Liabilities. Upon the terms and subject to all of the conditions of this Agreementcontained herein, at the Closing, Purchaser the Buyer shall assume, and agree to pay, perform and discharge, only the following obligations and liabilities of the Seller relating to the Acquired Business and the Acquired Assets, and no others (the "Assumed Liabilities"):
(a) those obligations and liabilities of the Seller with respect to periods after the Closing under and in connection with (i) assume and, subject the leases with respect to Section 2.5, Section 6.5, Section 6.6 the Leased Real Property and Article VII, pay, perform, satisfy (ii) the Owned IP Rights and discharge any the Licensed IP Rights;
(b) those obligations and all Liabilities liabilities of the Sellers Seller under outstanding customer orders relating to Inventory associated with ongoing Inventory programs, possession of which has not yet been taken by the Seller, the Seller's bailee or any other third party holding such Inventory on behalf of their Affiliates the Seller, each as set forth on Schedule 2.4(b);
(including c) all debts, liabilities and obligations of the Conveyed Subsidiaries and their Subsidiaries), whether Seller arising prior to, on or under the Purchased Contracts with respect to periods after the ClosingClosing (other than any debt, liability or obligation set forth on Schedule 2.4(c) or arising out of or relating to a breach by the Seller of such Purchased Contract that occurred prior to the extent resulting from Closing);
(d) all debts, liabilities and obligations that are attributable to or arising out of the past, present ownership or future ownership, operation, use or conduct operation of the Business any Acquired Assets or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries Acquired Business with respect to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or periods after the Closing;
(ce) all Liabilities for Taxes of the Conveyed Subsidiaries debts, obligations and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreementliabilities set forth on Schedule 2.4(e);
(df) all Liabilities any employment-related liability related to an Affected Employee to the extent arising out of, attributable to events or circumstances occurring with respect to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or periods after the Closing;
(fg) all accounts payable those obligations and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness liabilities of the Conveyed Subsidiaries (Seller under outstanding purchase orders with suppliers for the Acquired Business required to be paid, performed or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or discharged after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(dand as set forth on Schedule 2.4(g); and
(ih) the Liabilities obligations to pay the sales commissions set forth on Schedule 2.4(h), allocated to the Buyer as further described in Section 2.4(i) of the Seller Disclosure Letter3.8(d).
Appears in 1 contract
Assumption of Assumed Liabilities. Except as expressly provided below in this Section 2.4, the Purchaser shall not assume, in connection with the transactions contemplated hereby, any other liability or obligation of any Seller of whatever nature, whether known, unknown, absolute, contingent or otherwise, and whether accrued or unaccrued. Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the followingagrees that:
(a) all Liabilities upon the effectiveness of the Polymers Closing it shall assume only the following obligations and liabilities of the Sellers (other than Huntsman Petrochemical) relating to the Polymers Business, the Polymers Facilities or the other Polymers Assets (collectively, the “Polymers Assumed Liabilities”):
(i) (A) the liabilities and obligations of such Sellers under the Polymers Assumed Contracts and the Licenses included in the Polymers Assets, but in each case only to the extent expressly assumed by, retained by or agreed such liabilities and obligations arise and are required to be performed by Purchaser on or its Subsidiaries (including after the Conveyed Subsidiaries Polymers Closing Date and their Subsidiaries) pursuant do not relate to any obligation or liability incurred prior to the terms Polymers Closing Date, and (B) any liabilities or obligations under the Polymers Assumed Contracts to provide any rebates, performance payments, volume incentives or other similar payments;
(ii) the Purchaser’s portion of this Agreement, including all Liabilities to pro-rated Taxes under Section 2.6(a);
(iii) the extent transferred to or assumed or retained Remediation of Known On-Site Polymers Environmental Contamination and any Known Off-Site Polymers Migrated Environmental Contamination as required by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;Environmental Laws; and
(iv) the Indemnifiable Polymers Assumed Liabilities.
(b) all Liabilities upon the effectiveness of the Base Chemicals Closing it shall assume only the following obligations and liabilities of Huntsman Petrochemical relating to the Base Chemicals Business, the Base Chemicals Facilities or the other Base Chemicals Assets (collectively, the “Base Chemicals Assumed Liabilities”):
(i) (A) the liabilities and obligations of such Seller under the Base Chemicals Assumed Contracts and the Licenses included in respect of any Actionthe Base Chemicals Assets, whether class, individual or otherwise but in nature, in law or in equity, whether or not presently threatened, asserted or pending, each case only to the extent arising out of, or such liabilities and obligations arise and are required to the extent relating to, the Business or the operation or conduct of the Business prior to, be performed on or after the ClosingBase Chemicals Closing Date and do not relate to any obligation or liability incurred prior to the Base Chemicals Closing Date, and (B) any liabilities or obligations under the Base Chemicals Assumed Contracts to provide any rebates, performance payments, volume incentives or other similar payments;
(cii) all Liabilities for the Purchaser’s portion of pro-rated Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreementunder Section 2.6(a);
(diii) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale Remediation of Products prior to, on or after the Closing, including warranty obligations Known On-Site Base Chemicals Environmental Contamination and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Known Off-Site Base Chemicals Migrated Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Contamination as required by Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d)Laws; and
(iiv) the Indemnifiable Base Chemicals Assumed Liabilities. The Polymers Assumed Liabilities set forth in Section 2.4(i) of and the Seller Disclosure LetterBase Chemicals Assumed Liabilities are collectively the “Assumed Liabilities.”
Appears in 1 contract
Samples: Asset Purchase Agreement (Huntsman International LLC)
Assumption of Assumed Liabilities. Upon The Seller hereby sells, transfers, conveys, assigns and delivers unto the terms applicable Buyer Designated Advisory Subsidiary all of its right, title and subject interest in and to all of the conditions of this AgreementAssumed Liabilities, at the Closing, Purchaser shall (i) assume and, subject and such applicable Buyer Designated Advisory Subsidiary hereby assumes and agrees to Section 2.5, Section 6.5, Section 6.6 and Article VII, timely pay, perform, satisfy discharge and discharge any and all Liabilities of the Sellers or any of perform in accordance with their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and terms all of their respective such Assumed Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include accordance with the following:
(a) all All Assumed Liabilities relating to any Assigned Contracts or other Acquired Assets acquired by, or the extent expressly post-Closing operation of the Business by, or the Transferred Employees employed by, FGIMC (including under Section 8.02 of the Agreement), and any other Assumed Liabilities not otherwise identified in Section 3(b) - (d) below, shall be deemed hereunder to be sold to, and assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13FGIMC;
(b) all All Assumed Liabilities in respect of relating to any Action, whether class, individual Assigned Contracts or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out ofother Acquired Assets acquired by, or to the extent relating to, the Business or the post-Closing operation or conduct of the Business prior by, FMDTA shall be deemed hereunder to be sold to, on or after the Closingand assumed by, FMDTA;
(c) all All Assumed Liabilities for Taxes relating to any Assigned Contracts or other Acquired Assets acquired by, or the post-Closing operation of the Conveyed Subsidiaries and their Subsidiaries andBusiness by, without duplication, all other Liabilities for Taxes imposed with respect FIC shall be deemed hereunder to be sold to, arising out of or relating to the Purchased Assets or the Businessand assumed by, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;FIC; and -2- 114399-0014/144070633.6
(d) all All Assumed Liabilities relating to the extent arising out ofany Assigned Contracts or other Acquired Assets acquired by, or the post-Closing operation of the Business by, FIMC shall be deemed hereunder to the extent relating be sold to, the designand assumed by, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterFIMC.
Appears in 1 contract
Samples: Transaction Agreement (Federated Investors Inc /Pa/)
Assumption of Assumed Liabilities. Upon On the terms terms, and subject to the conditions of of, this Agreement, and subject to Section 2.04, at the Closing, Purchaser Buyer shall, or shall (i) procure that its designated Subsidiaries shall, assume andand become responsible for, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy perform and discharge any and when due, effective as of the Closing, all Liabilities of Parent or other Parent Entities to the Sellers extent relating to, arising out of or any of their Affiliates (including in connection with the Conveyed Subsidiaries and their Subsidiaries)Business or the Transferred Assets, whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the pastin each case that are not Excluded Liabilities (such Liabilities, present or future ownership, operation, use or conduct together with all Liabilities of the Business Companies, which are transferred to Buyer (or its designated Subsidiaries) through the Purchased Assets (including transfer of the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”); provided that the assumption of certain Assumed Liabilities in jurisdictions in which local Laws require specified formalities or other procedures to be observed to legally effect a assumption of such Assumed Liability shall be effected pursuant to Local Transfer Documents as further described in Section 2.13. The Buyer hereby guarantees the performance and discharge when due and/or payable of all Assumed Liabilities assumed by any Affiliate of Buyer. Solely for purpose of non-exhaustive illustration, the Assumed Liabilities shall also include the followinginclude:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred relating to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out ofof the conduct, ownership or to the extent relating to, operation of the Business or the operation relating to or conduct arising out of the Business Transferred Assets, in each case regardless of whether arising prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(hb) all Liabilities to the extent relating to, resulting from or arising out of or in connection with products and services manufactured, sold, delivered or otherwise provided by the Business, at any time prior to, on or after the Closing Date, including any warranty claims related thereto;
(c) all Liabilities under any Permitted Lien to the extent related to any Transferred Asset;
(d) all Liabilities relating to, arising out of or in connection with Business Guarantees;
(e) the Assumed Contracts, including Purchaser’s Tax Liabilities;
(f) all accrued expenses of the Parent Entities to the extent related to the Business (or its Affiliates’ otherwise taken into account in the determination of the Final Closing Date Working Capital);
(including g) all accounts payable (other than Intracompany Payables) to the extent Related to the Business or any Conveyed Subsidiary’s Assumed Liability (or its Subsidiaries’) portion otherwise taken into account in the determination of Shared Contractual Liabilities pursuant to Section 2.2(dthe Final Closing Date Working Capital); and
(ih) all Liabilities for which Buyer or its Affiliates (including the Liabilities set forth in Section 2.4(iBusiness Companies) of the Seller Disclosure Letterare responsible pursuant to Section 5.06.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (Sonoco Products Co)
Assumption of Assumed Liabilities. Upon Except as expressly provided in this Section 1.4, the terms and subject Purchaser shall not assume any claims, liabilities or obligations of the Company. As the sole exception to the conditions of this Agreementforegoing, at the ClosingPurchaser shall, and Parent shall cause Purchaser shall (i) to, assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy timely discharge or perform the following liabilities and discharge any and all Liabilities obligations of the Sellers or any of their Affiliates Company (including collectively, the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:"ASSUMED LIABILITIES"):
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including obligations and liabilities of the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13Company under each Contract;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, except to the extent arising out ofexcluded in Section 1.5 below, or to the extent relating to, the Business or the operation or conduct all other liabilities of the Business prior to, on or after Company incurred in the Closingordinary course of business in connection with the Business;
(c) all Liabilities for Taxes liabilities set forth on the September 30, 2003 balance sheet of the Conveyed Subsidiaries Company and their Subsidiaries andall liabilities set forth on the Company's payable ledger dated October 29, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business2003, in each case, to the extent not paid prior to Closing, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreementthose listed on SCHEDULE 1.5(C);
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty liabilities and obligations and irrespective of the legal theory assertedCompany for refunds of payments received by the Company (at any time) for advertising or other services;
(e) all Liabilities to suppliers liabilities and customers, in each case to obligations arising on account of the extent arising out of, or to operation of the extent relating to, Business and/or the Business, including in respect use of any Products returned prior to, on or the Assets after the Closing;
(f) all accounts payable Liens on and/or against Assets for taxes not yet due and all payable, rights of lessors under leases, statutory Liens for mechanics, materialmen, warehousemen, carriers and other LiabilitiesLiens arising by operation of law for sums not yet due and payable, in each case included in rights of licensors and such other Liens as do not detract from the calculation of Final Business Working Capital, all Funded Indebtedness included in value or materially interfere with the calculation of Final Business Net Cash and all other Indebtedness present use of the Conveyed Subsidiaries property affected thereby (or their Subsidiaries) that is not Funded Indebtednessthe "PERMITTED LIENS");
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect liabilities and obligations of the Conveyed Subsidiaries (or their Subsidiaries), Company associated with advertising contracts in effect on the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;Closing Date; and
(h) any and all Liabilities bonus payments due or payable to the extent relating to, resulting from or arising out employees of the Assumed Contracts, including Purchaser’s Company whether or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant not such bonuses are earned to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letterdate.
Appears in 1 contract
Samples: Asset Purchase Agreement (Return on Investment Corp)
Assumption of Assumed Liabilities. Upon the terms Buyer shall (a) assume and subject agree to the conditions pay and satisfy only those obligations and liabilities of this Agreement, Seller as reflected on that certain Exhibit "B" attached hereto and incorporated by reference hereby; and (b) pursuant to a lease assignment and assumption agreement to be executed and delivered at the ClosingClosing (the "Lease Assumption Agreement") in the form of Exhibit "C" hereto, Purchaser assume and agree to pay and satisfy only those obligations and liabilities of Seller accruing under that certain lease agreement dated ________ between Seller and _____________ from and after the Closing (collectively, the "Assumed Liabilities"). Except for the Assumed Liabilities, Buyer shall (i) assume andnot assume, subject to Section 2.5and Seller shall be and remain liable for, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities obligations, liabilities and indebtedness of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries)Seller, whether arising prior todue or to become due, on absolute or after contingent, direct or indirect, or asserted or unasserted and whether relating to Seller, Seller's business, the ClosingAssets or otherwise. Seller shall indemnify Buyer and Buyer's officers, to the extent resulting directors and affiliates from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge against any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries losses (including the Conveyed Subsidiaries attorneys' fees and their Subsidiariescosts) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating in any way related to medical malpractice claims against Seller or Shareholder, whether vested or contingent, as of the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to date of this Agreement;
. The following items shall be apportioned as of 11:59 p.m. on the day preceding the Closing: (di) personal property taxes, sewer rents and charges and other state, county, metropolitan and municipal taxes and assessments and charges affecting the Assets; (ii) rents and other payments under any of the Contracts; (c) charges for water, electricity, gas, oil, steam and all Liabilities to other utilities; and (iv) such other items as are customarily apportioned in connection with the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products similar property, including employee salaries, expenses and taxes, all such items prior to, on or to such time being for the account of Seller and all such times after such time being the account of Buyer. At the Closing, including warranty obligations and irrespective of Seller or Buyer, as the legal theory asserted;
(e) all Liabilities to suppliers and customerscase may be, in each case shall deliver to the extent arising out of, or to other a check for the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to net amount owing under this Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter2.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Embassy Acquisition Corp)
Assumption of Assumed Liabilities. Upon the terms and subject Except as expressly provided in this Section 1.4, notwithstanding anything to the conditions of contrary contained in this Agreement, at and regardless of whether such liability is disclosed in this Agreement, or on any Schedule or Exhibit hereto, the ClosingBuyer Parties shall not assume, Purchaser shall (i) assume and, subject agree to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, performperform and discharge, satisfy and discharge bear the economic burden of or in any and all Liabilities way be responsible for any debts, liabilities or obligations of the Sellers Seller (whether known or unknown, accrued or unaccrued, fixed or contingent), or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries)Seller's Affiliates, whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Actionkind or nature whatsoever, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business resulting from, or the operation caused by any transaction, status, event, condition, occurrence or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect situation relating to, arising out of or relating in connection with the Business or otherwise. As the sole exception to the Purchased Assets foregoing, effective as of the Closing Date, Buyer shall assume and agree to pay, discharge or perform, as appropriate, the Businessfollowing liabilities and obligations of Seller existing as of the Closing Date arising out of the conduct of the Business prior to the Closing Date (collectively, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;the "Assumed Liabilities"):
(da) all Liabilities obligations of Seller under Assumed Contracts (including, without limitation, obligations under the Labor Agreement) to the extent arising out of, such obligations arise or relate to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or periods after the Closing, including warranty obligations are not required to be performed prior to the Closing, do not arise or result from any breach or default under such Assumed Contracts prior to the Closing and irrespective are disclosed on the face of the legal theory assertedsuch Assumed Contracts;
(eb) all Current Liabilities (as hereinafter defined) relating to suppliers and customersthe operation of the Business, in each case but only to the extent arising out of, such liabilities are included in the determination of Net Working Capital in the Final Working Capital Schedule (as determined in accordance with Section 2.2(a)); except that (i) liabilities and obligations of Seller JV included in Current Liabilities shall not be Assumed Liabilities (but sixty percent (60%) of the current liabilities of the Seller JV shall be included in determining Net Working Capital pursuant to Sections 2.2 and 2.3) and shall remain liabilities or to the extent relating to, the Business, including in respect obligations of any Products returned prior to, on or Seller JV after the Closing;
; and (fii) all accounts payable and all other Liabilities, in each case Assumed Liabilities shall not include any reserves included in the calculation of Final Business Working CapitalCurrent Liabilities, all Funded Indebtedness but such reserves shall be included in the calculation of Final Business determining Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities Working Capital pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure LetterSections 2.2 and 2.
Appears in 1 contract
