Assumption of Certain Liabilities; Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, effective as of the Closing Date, Buyer shall assume and agree to pay, honor, perform and discharge when due and payable, and indemnify and hold harmless Seller from any and all liabilities and obligations of Seller of any kind, character and description, whether accrued, absolute, contingent, or otherwise, whether arising before or after Closing relating to or arising from the operation of the Business or the Purchased Assets (the "ASSUMED LIABILITIES"), which will be evidenced by the execution and delivery of an Assignment and Assumption Agreement substantially in the form of Exhibit A attached hereto (the "ASSIGNMENT AND ASSUMPTION AGREEMENT"). (b) Buyer shall in no event assume, nor shall it be liable for, any obligations or liabilities of Seller of any nature whatsoever (whether express or implied, fixed or contingent, known or unknown) other than the Assumed Liabilities (all obligations and liabilities of Seller other than the Assumed Liabilities are set forth below and referred to herein collectively as the "EXCLUDED LIABILITIES"). Without limiting the foregoing, Buyer shall not be deemed to assume any liabilities relating to or arising out of: (i) Contributions to or other obligations arising under the Employee Benefit Plans; (ii) All amounts (fixed, contingent or otherwise) payable by Seller to any Shareholder or other Affiliate of Seller; (iii) All Taxes based on net income or attributable to sales or use that are assessed, accrued or attributable for periods prior to the Closing Date and related penalties and interest, if any, except to the extent reflected on the Closing Balance Sheet; and
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Assumption of Certain Liabilities; Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, effective as of the Closing Date, Buyer shall assume and agree to pay, honor, perform and discharge when due and payabledue, and indemnify Sellers and hold each of them harmless Seller from the following liabilities and obligations of the Crown Communications Business (the "Assumed Liabilities"): -------------------
(i) outstanding indebtedness of the Crown Communications Business, including approximately $20.5 million in the aggregate outstanding as of May 31, 1997 and additional indebtedness incurred thereafter in the ordinary course of business; provided, however, that -------- ------- the aggregate amount of outstanding indebtedness assumed will not exceed (A) $25 million, plus (B) the aggregate amount of any additional indebtedness incurred with the written consent of Buyer pursuant to Section 7.1.
(ii) trade payables and other accounts payable reflected on the balance sheet as of June 30, 1997 of Crown Communications included as part of the Crown Interim Financial Statements (as defined herein) and those arising thereafter in the ordinary course of business consistent with past practice;
(iii) all liabilities and obligations of Seller of any kind, character and description, whether accrued, absolute, contingent, Sellers arising under or otherwise, whether arising before or after Closing relating to or the Assumed Contracts; and
(iv) all other liabilities and obligations of Sellers arising from the operation of the Business or the Purchased Assets (the "ASSUMED LIABILITIES"), which will be evidenced by the execution and delivery of an Assignment and Assumption Agreement substantially in the form ordinary course of Exhibit A attached hereto (business consistent with past practice, up to $2 million in the "ASSIGNMENT AND ASSUMPTION AGREEMENT")aggregate.
(b) Buyer shall in no event assume, nor shall it be liable for, any obligations or liabilities of Seller Sellers of any nature whatsoever (whether express or implied, fixed or contingent, known or unknown) other than the Assumed Liabilities (all obligations and liabilities of Seller Sellers other than the Assumed Liabilities are set forth below and referred to herein collectively as the "EXCLUDED LIABILITIESExcluded Liabilities"). Without limiting the foregoing, Buyer shall not be deemed to assume any liabilities relating to or arising out of:
(i) Contributions to of any Excluded Assets or any liabilities for any Taxes, other obligations arising under the Employee Benefit Plans;
(ii) All amounts (fixed, contingent or otherwise) payable by Seller to any Shareholder or other Affiliate of Seller;
(iii) All Taxes based on net income or attributable to sales or use that are assessed, accrued or attributable than liability for periods prior to the Closing Date and related penalties and interest, if any, except transfer taxes to the extent reflected on the Closing Balance Sheet; andassumed by Buyer pursuant to Section 14.3.
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Samples: Asset Purchase and Merger Agreement (Crown Castle International Corp)
Assumption of Certain Liabilities; Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of the Closing DateClosing, Buyer and from and after the Closing, Purchaser shall assume and agree to pay, honor, perform and discharge when due due, only the following liabilities, obligations and payable, and indemnify and hold harmless commitments of Seller from any and all (subject to Purchaser’s right to dispute such liabilities and obligations in good faith with parties to whom such obligations are owed) (such liabilities, obligations and commitments being the “Assumed Liabilities”):
(i) all of Seller’s payment and performance obligations arising subsequent to the Closing under the Contracts and the Licenses and Permits (but in each case not including any liability or obligations for breaches thereof arising out of or related to events or occurrences prior to the Closing Date);
(ii) all of Seller’s current accrued liabilities incurred in the ordinary course of business, to the extent that such items are properly recorded in accordance with GAAP as current liabilities in the Closing Working Capital Statement prepared in accordance with Section 1.6 (“Accrued Liabilities”);
(iii) the accounts payable of Seller as of any kindthe Closing Date to the extent incurred in the ordinary course of business and properly recorded in accordance with GAAP as accounts payable in the Closing Working Capital Statement (“Accounts Payable”); and
(iv) all other liabilities, character obligations and descriptioncommitments, whether accruedknown or unknown, express or implied, absolute, contingent, contingent or otherwise, whether arising before out of Purchaser’s operation or after Closing relating to or arising from the operation conduct of the Business or subsequent to the Purchased Assets (the "ASSUMED LIABILITIES"), which will be evidenced by the execution and delivery of an Assignment and Assumption Agreement substantially in the form of Exhibit A attached hereto (the "ASSIGNMENT AND ASSUMPTION AGREEMENT")Closing.
(b) Buyer Except as expressly set forth in Section 1.5(a), Purchaser shall in no event assumenot assume or be responsible at any time for any liability, nor shall it be liable forobligation, any obligations debt or liabilities commitment of Seller of any nature whatsoever (Seller, whether express or implied, fixed absolute or contingent, known accrued or unknownunaccrued, asserted or unasserted, or otherwise, including but not limited to any liabilities, obligations, debts or commitments of Seller incident to, arising out of or incurred with respect to, this Agreement and the transactions contemplated hereby (including any and all sales, income or other taxes arising out of the transactions contemplated hereby). Without limiting the generality of the foregoing, Seller and Parent expressly acknowledge and agree that Seller shall retain, and that Purchaser shall not assume or otherwise be obligated to pay, perform, defend or discharge, (i) any liability of Seller and/or Parent for income Taxes or other than Taxes, (ii) any liability of phx-srv01\1468313v05 3 Seller arising from breach of law, breach of Contract or tort, (iii) any liability, obligation, debt or commitment of Seller to Parent or any other Affiliate of Seller or Parent, (iv) any liability, obligation or commitment of Seller pursuant to any non-competition agreement, or (v) any Indebtedness of Seller (collectively, the Assumed Liabilities (“Excluded Liabilities”). Seller and Parent further agree to satisfy and discharge as the same shall become due all obligations and liabilities of Seller other than the Assumed Liabilities are set forth below and referred to herein collectively as the "EXCLUDED LIABILITIES"). Without limiting the foregoing, Buyer shall not be deemed to assume any liabilities relating to or arising out of:
(i) Contributions to or other obligations arising under the Employee Benefit Plans;
(ii) All amounts (fixed, contingent or otherwise) payable specifically assumed by Seller to any Shareholder or other Affiliate of Seller;
(iii) All Taxes based on net income or attributable to sales or use that are assessed, accrued or attributable for periods prior to the Closing Date and related penalties and interest, if any, except to the extent reflected on the Closing Balance Sheet; andPurchaser hereunder.
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Assumption of Certain Liabilities; Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, effective as of the Closing Date, Buyer shall assume and agree to pay, honor, perform perform, and discharge when due and payable, and indemnify and hold harmless Seller from any and all against the specific liabilities and obligations of Seller of any kind, character and description, whether accrued, absolute, contingent, or otherwise, whether arising before or after Closing relating set forth below which relate to or arising from the operation of the Business or and the Purchased Acquired Assets as of the Closing Date (the "ASSUMED LIABILITIES"“Assumed Liabilities”), which assumption by Buyer will be evidenced by the execution and delivery of an Assignment and Assumption Agreement substantially in the form of Exhibit A attached hereto (the "ASSIGNMENT AND ASSUMPTION AGREEMENT"“Assignment and Assumption Agreement”). The Assumed Liabilities shall consist solely of (i) all liabilities and obligations that arise or accrue following the Closing under the express terms of the Purchase Orders, Permits, and Contracts included in the Acquired Assets, but not including any liability or obligation for any breach thereof or default thereunder occurring prior to the Closing; and (ii) all current trade payable liabilities and obligations accrued on the Estimated Closing Statement or the Closing Balance Sheet in the amounts shown thereon as and to the extent (A) such liabilities and obligations relate exclusively to the Business or the Acquired Assets, and (B) were incurred by Seller in the ordinary course of business consistent with past practice (the “Assumed Accounts Payable”).
(b) Buyer shall in no event assume or be deemed to assume, nor shall it be liable for, any obligations or liabilities of Seller of any nature whatsoever (whether express or implied, fixed or contingent, known or unknown) other than the Assumed Liabilities (all obligations and liabilities of Seller other than the Assumed Liabilities are set forth below and referred to herein collectively as the "EXCLUDED LIABILITIES"“Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer Excluded Liabilities shall not be deemed to assume any liabilities relating to or arising out ofinclude:
(i) Contributions liabilities to, under or with respect to any Benefit Plan and the administration of any Benefit Plan, or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits with respect to employees or former employees of the Business or any of its predecessors, under any employment, severance, retention or termination agreement with any employee of the Business, or arising out of or relating to any employee grievance whether or not the affected employees are hired by Buyer (other obligations arising than current outstanding payroll, vacation and sick leave pay for Transferred Employees and amounts payable to Transferred Employees under Seller’s Staff Incentive Plan, the Employee Benefit Plans;amounts for which will be accrued as a liability on the Estimated Closing Statement or the Closing Balance Sheet and the obligation to pay will be assumed by Buyer); Table of Contents
(ii) All amounts liabilities relating to disability, injuries, and occupational diseases of or with respect to former or current employees of the Business;
(fixediii) liabilities relating to all Taxes of the Business and the Acquired Assets that are assessed, contingent accrued, accruing or otherwiseattributable for periods up to and including the time of Closing (including those that are not yet delinquent and any Liens for such Taxes) and all liabilities relating to the Taxes of Seller for any period (which does not include Taxes payable by Seller under the PSTA or land transfer Tax arising on the transfer of the Acquired Assets to Buyer pursuant to this Agreement);
(iv) liabilities relating to any Shareholder complaint, action, arbitration or regulatory, administrative or government proceeding or investigation involving Seller or its Affiliates, the Facility, or any of the Acquired Assets, arising out of any action based on, or events occurring as a result of, the operation of the Business prior to the Closing, other Affiliate than collection actions initiated by Seller;
(v) all Indebtedness of Seller;
(iiivi) All Taxes based liabilities for products liability for all products shipped, distributed, assembled or manufactured by, or any services provided by Seller with respect to the Business relating to any recalls of products manufactured by Seller before the Closing; and for all express and implied product warranties for all products shipped, distributed, assembled or manufactured by, or any services provided by Seller or any of its predecessors with respect to the Business;
(vii) liabilities and obligations incurred by Seller on net income or attributable after the Closing;
(viii) any liability or obligation to sales indemnify, defend, or hold harmless any of Seller’s officers, directors, employees, or agents;
(ix) Environmental Liabilities arising out of or relating to:
(A) any actual or alleged violation of Environmental Laws existing before the Closing arising out of or related to (1) the ownership, use that are assessedor operation of the Business, accrued the Facility, the other Acquired Assets (collectively, the “Business Assets”) or attributable for periods any other real property, leasehold or other real property interest and any building, plant, vessel, vehicle, rolling stock, structure, product, substance or equipment currently or formerly owned, leased, controlled, stored, used or operated by Seller or any of its predecessors in connection with the Business or the Facility; (2) the design, configuration or condition of the Facility or any structure or equipment currently or formerly owned, leased, controlled, used or operated by Seller or any of its predecessors in connection with the Business Assets; (3) failure to have or maintain all authorizations, licenses, permits or approvals required to use, own, or operate the Business Assets under applicable Environmental Law (the “Environmental Permits”) prior to the Closing Date Closing, including the failure of Seller to have all Permits required under the Water Act (British Table of Contents Columbia) (the “Water Act”) required for the current operations of the Business as historically carried on by Seller; or (4) the failure to have, maintain or properly operate programs and related penalties equipment for monitoring of, or the failure to report in an accurate and interesttimely manner, if anyany Release, except to employee exposure, incident, or occupational health and safety condition;
(B) any Environmental Condition existing before the extent reflected on Closing, including the subsequent migration of Hazardous Material after the Closing Balance Sheet(each, an “Existing Environmental Condition”), including any liability for (1) an Environmental Remedial Action to address or related to an Existing Environmental Condition; (2) claims asserted by any third party (including any employee or former employee of Seller or Buyer) for bodily injury, death, or property damage allegedly caused by, or arising from exposure to, any Existing Environmental Condition; (3) any natural resource damages arising from any Existing Environmental Condition, and (4) any liabilities relating to any off-site transportation, treatment, disposal or Release of any Hazardous Material resulting from any Environmental Remedial Action to address an Existing Environmental Condition, whether such Environmental Remedial Action was taken before or after the Closing Date, in each case, without regard to whether any Existing Environmental Condition is listed or identified in Schedule 4.19;
(C) the storage, transportation, treatment, disposal, discharge, recycling or Release of any Hazardous Material at any off-site location by Seller or any of its predecessors before the Closing, or the arrangement by Seller or any of its predecessors for any storage, transportation, treatment, disposal, discharge, recycling, or Release of any Hazardous Material at any off-site location before the Closing;
(D) any contractual indemnity obligations relating to requirements of Environmental Law or environmental liabilities that Seller has undertaken in connection with the Business Assets;
(E) any liabilities or obligations for any breach or default by Seller under any Material Contract occurring before the Closing; and
(F) any liabilities attributable to Excluded Assets. Buyer acknowledges and agrees that Section 2.3(b)(ix) is intended to be the sole provision that defines Environmental Liabilities that are Excluded Liabilities and Environmental Liabilities are excluded from all other provisions in Section 2.3(b).
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