Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations: (a) the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof; (b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date; (c) the Buyer's IDRB Obligations; (d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions"); (e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date; (f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2; (g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and (h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller. 2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). 2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement: (a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income; (b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business; (c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member. (d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets); (e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date; (f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets; (g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger); (h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date; (i) any liability or obligation in respect of the Excluded Assets; (j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or (k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) Upon the terms and subject to the conditions of this Agreement, Buyer shall assume, effective as of the Closing, and from and after the Closing Buyer shall pay, perform and discharge, all of the following obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real EstateSeller, whether based on statutory express or common lawimplied, now liquidated, absolute, accrued, matured, unmatured, contingent or hereafter in effectotherwise, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) unknown (the foregoing, the "Pre-Existing Conditions");“Assumed Liabilities”):
(ei) all liabilities and obligations arising out of Seller related or relating to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Businessownership or use of the Acquired Assets, in each case relating to the Business and outstanding or arising from any fact, circumstance, occurrence, condition, act or omission existing (x) on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreementexcept, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement")each case, pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to (A) any breach by Seller or any of its Subsidiaries of, or nonperformance by Seller or any of its Subsidiaries under, any Contract prior to the ownership Closing, or (B) any violation of Law by Seller or any of its Subsidiaries prior to the Closing) or (y) following the Closing, other than due to a breach by Seller under this Agreement;
(ii) all liabilities and obligations for Taxes (x) related to the Acquired Assets or the operation of the Acquired Assets that are attributable to any taxable period (or portion thereof) beginning after the Business Closing Date or (y) which are the responsibility of Buyer under Section 5.07; and
(iii) any other liabilities or obligations which the Buyer specifically assumes pursuant to the terms of this Agreement.
(b) Notwithstanding any other provision of this Agreement or any Ancillary Agreement to the contrary, and regardless of any disclosure to Buyer, Buyer shall not assume or be liable for any liability, obligation or commitment of Seller or any of its Subsidiaries of any kind (whether express or implied, liquidated, absolute, accrued, matured, unmatured, contingent or otherwise (including any liability, obligation or commitment based on any theory of successor liability) or known or unknown) other than the Assumed Liabilities (the “Excluded Liabilities”). The Excluded Liabilities, which shall be retained and paid, performed and discharged when due by Seller, include the following:
(i) any liability, obligation or commitment of Seller or any of its Subsidiaries that relates to, or that arises from, any Excluded Asset, or that arises from the distribution to or ownership by Seller or any of its Subsidiaries of any Excluded Asset, or that is associated with the realization of the benefits of any Excluded Asset, whether accruing prior to, at or after the Closing;
(ii) any liability, obligation or commitment of Seller or any of its Subsidiaries relating to or arising from any actual or alleged breach by Seller or any of its Subsidiaries of, or nonperformance by Seller or any of its Subsidiaries under, any Contract prior to the Closing Date Closing;
(including iii) (A) any predecessor operations)Taxes of Seller, (B) any claims, obligations or litigation Taxes related to the extent arising out of Acquired Assets that were incurred in or relating are attributable to events any taxable period (or conditions occurring portion thereof) ending on or before the Closing Date, (C) any Taxes of another person for which Seller is liable, including Taxes for which Seller is liable by reason of Treasury Regulations Section 1.1502-6 (or any comparable or similar provision of U.S. federal, state, local, Singapore or other Law), being a transferee or successor, any contractual obligation or otherwise, and (D) any liability associated income, withholding, transfer, sales, use or other Taxes arising in connection with the consummation of the transactions contemplated by this Agreement (including any business income or withholding Taxes arising as a result of the transfer by Seller to Buyer of the Acquired Assets);
(iv) any liability, obligation or commitment for fees and expenses incurred by Seller or any of its Subsidiaries (including the fees and expenses of legal counsel, and fees and expenses of any accountant, auditor, broker, financial advisor or consultant retained by or on behalf of Seller or any of its Subsidiaries) arising from or in connection with this Agreement or the Ancillary Agreements or the transactions contemplated hereby or thereby;
(v) any liability, obligation or commitment of Seller or any of its Subsidiaries to any of their respective Affiliates;
(vi) any Indebtedness of Seller or any of its Subsidiaries;
(vii) any liability, obligation or commitment of Seller or any of its Subsidiaries relating to (A) the employment or termination of employment (including termination in connection with the transactions contemplated hereby) with Seller or any of its Subsidiaries of any current or former director, officer, employee, contractor or consultant of Seller or any of its Affiliates or (B) any Benefit Plan or Benefit Agreement; and
(viii) any Controlled Group Liability with respect to Seller or any Commonly Controlled Entity.
(c) Seller shall take all actions necessary to ensure that Buyer shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Seller and its Subsidiaries, other than the BusinessAssumed Liabilities, and free and clear of all Liens.
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 On the Closing Date, Buyer shall not assume any liabilities of Citizens or Seller or be obligated to assume, and shall not assume, any of their Affiliatesthe liabilities or obligations of Seller (absolute, accrued, contingent or otherwise), whether existing prior to or as of the Closing Date, or asserted after the Closing Date and relating to events that occurred before the Closing Date, or otherwise, except that Buyer shall assume and agrees to pay, perform and discharge, in accordance with their respective terms, the following specific liabilities and obligations:(collectively referred to herein as the "Assumed Liabilities"):
(a) all obligations of Seller arising in the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereofordinary course of business under the Assigned Leases or the Assigned Contracts to the extent transferable;
(b) except as set forth in Section 2.3.3(b)all trade accounts payable, all liabilities customer deposits and obligations accrued expenses, but not any accrued income or sales taxes or employee related expenses including, but not limited to, withholding taxes, 401(k) withholdings or matching contributions, company payroll taxes, vacation accruals, bonuses, miscellaneous withholdings, or accrued salaries and wages, associated with the Assets of Seller in respect as of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement Closing Date arising in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Dateordinary course of business;
(c) the Buyer's IDRB Obligations;obligations of Seller as of the Closing Date to fill orders received by Seller in the ordinary course of business (i) for the manufacture and sale of lodging and office furniture, (ii) for the sale of parts, or (iii) for service and maintenance of said furniture or parts; and
(d) any liability, obligation or responsibility the other obligations and liabilities of Seller that are listed on Exhibit 1.7 hereto. Nothing in this Agreement shall be deemed to create any obligation on the part of Buyer to continue the employment of any individual or to create any contract right or entitlement with respect thereto. Buyer shall have no responsibility for conditions at any amounts, obligations, liabilities, compensation, severance pay or benefits of any kind or nature due to Seller's employees through the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to Closing Date or arising from pollution, contamination or protection as a result of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation termination by Seller of any law relating to such employees in connection with the foregoingtransactions contemplated by this Agreement, including including, without limitation, any CERCLA or similar liability benefits that may arise under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of all such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations shall be the sole responsibility of Seller. Seller related to unperformed service obligations, easement shall prepare and right-of-way relocation obligations, file all payroll reports and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects Forms W-2 for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to its employees through the Closing Date;
(f) liability for accrued but unused vacation pay for . Unless expressly stated in this Section 1.7 or in Exhibit 1.7, nothing in this Agreement shall be deemed to create any obligation on behalf of the Transferred Employees Buyer with regard to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with arising out of the operation of the Seller's Business or the ownership of the Acquired AssetsAssets prior to or through the Closing Date of any nature whatsoever, including with respect whether known or unknown, direct or indirect, continigent or accrued, matured or unmatured including, but not limited to, claims for violation of any statutes, laws, regulations, rules, ordinances or orders of any authority, whether federal, state or local, tax claims or tax liens, labor relation claims, OSHA related claims, EEOC related claims, employee benefit claims, ERISA related claims, employee claims, environmental, health and safety claims, EPCRA related claims, product warranty, product return and product liability claims for products sold prior to or through the Closing Date, medical, dental and workers' compensation claims, computer software license claims, claims for personal injury, claims for injury to property, claims for breach of contract, claims for compensatory damages, claims for punitive damages, creditor claims, claims by lenders, claims on accounts, claims for unpaid debts, any liability and all claims by Seller's shareholders, and any and all litigation arising out of the types that appear foregoing claims. All liabilities of the Seller not herein defined as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are Assumed Liabilities shall hereinafter be referred to as the "Assumed Retained Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligationsintentionally omitted;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or Indiana protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or Indiana otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.Hazardous
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 On the Closing Date, Buyer shall not assume any liabilities of Citizens or Seller or be obligated to assume, and shall not assume, any of their Affiliatesthe liabilities or obligations of Seller (absolute, accrued, contingent or otherwise), whether existing prior to or as of the Closing Date, or asserted after the Closing Date and relating to events that occurred before the Closing Date, or otherwise, except that Buyer shall assume and agrees to pay, perform and discharge, in accordance with their respective terms, the following specific liabilities and obligations:(collectively referred to herein as the "Assumed Liabilities"):
(a) all obligations of Seller arising in the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereofordinary course of business under the Assigned Leases or the Assigned Contracts to the extent transferable;
(b) except as set forth in Section 2.3.3(b)all trade accounts payable, all liabilities customer deposits and obligations accrued expenses, but not any accrued income or sales taxes or employee related expenses including, but not limited to, withholding taxes, 401(k) withholdings or matching contributions, company payroll taxes, vacation accruals, bonuses, miscellaneous withholdings, or accrued salaries and wages, associated with the Assets of Seller in respect as of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement Closing Date arising in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Dateordinary course of business;
(c) the Buyer's IDRB Obligations;obligations of Seller as of the Closing Date to fill orders received by Seller in the ordinary course of business (i) for the manufacture and sale of lodging and office furniture, (ii) for the sale of parts, or (iii) for service and maintenance of said furniture or parts; and
(d) any liability, obligation or responsibility the other obligations and liabilities of Seller that are listed on Exhibit 1.7 hereto. Nothing in this Agreement shall be deemed to create any obligation on the part of Buyer to continue the employment of any individual or to create any contract right or entitlement with respect thereto. Buyer shall have no responsibility for conditions at any amounts, obligations, liabilities, compensation, severance pay or benefits of any kind or nature due to Seller's employees through the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to Closing Date or arising from pollution, contamination or protection as a result of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation termination by Seller of any law relating to such employees in connection with the foregoingtransactions contemplated by this Agreement, including including, without limitation, any CERCLA or similar liability benefits that may arise under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of all such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations shall be the sole responsibility of Seller. Seller related to unperformed service obligations, easement shall prepare and right-of-way relocation obligations, file all payroll reports and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects Forms W-2 for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to its employees through the Closing Date;
(f) liability for accrued but unused vacation pay for . Unless expressly stated in this Section 1.7 or in Exhibit 1.7, nothing in this Agreement shall be deemed to create any obligation on behalf of the Transferred Employees Buyer with regard to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with arising out of the operation of the Seller's Business or the ownership of the Acquired AssetsAssets prior to or through the Closing Date of any nature whatsoever, including with respect whether known or unknown, direct or indirect, contingent or accrued, matured or unmatured including, but not limited to, claims for violation of any statutes, laws, regulations, rules, ordinances or orders of any authority, whether federal, state or local, tax claims or tax liens, labor relation claims, OSHA related claims, EEOC related claims, employee benefit claims, ERISA related claims, employee claims, environmental, health and safety claims, EPCRA related claims, product warranty, product return and product liability claims for products sold prior to or through the Closing Date, medical, dental and workers' compensation claims, computer software license claims, claims for personal injury, claims for injury to property, claims for breach of contract, claims for compensatory damages, claims for punitive damages, creditor claims, claims by lenders, claims on accounts, claims for unpaid debts, any liability and all claims by Seller's shareholders, and any and all litigation arising out of the types that appear foregoing claims. All liabilities of the Seller not herein defined as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are Assumed Liabilities shall hereinafter be referred to as the "Assumed Retained Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser agrees to assume and discharge or perform when due, and shall assume pursuant to the Assumption Agreement, the following Liabilities (collectively, the "Assumed Liabilities"):
(i) all accounts payable of the Business to the extent incurred in the ordinary course and (A) reflected on the Base Balance Sheet or (B) incurred after the date thereof and not in violation of any provisions of this Agreement (the "Assumed Payables");
(ii) all post-Closing Date Liabilities arising under the Transferred Contracts that do not arise out of or relate to any breach of contract, breach of warranty, tort, infringement or violation of Law or other similar event, occurrence or omission on or prior to the Closing Date; and
(iii) all other current Liabilities of Seller explicitly set forth on the Base Balance Sheet.
(b) Notwithstanding anything to the contrary in this Agreement, except for the Assumed Liabilities expressly listed in Section 2.02(a), Purchaser shall not assume assume, or in any liabilities way become liable, for any Liabilities of Citizens Seller or the Business of any nature whatsoever, whether related to the Business or the Transferred Assets and whether disclosed on the Disclosure Memorandum or otherwise, and regardless of when or by whom asserted (collectively, the "Excluded Liabilities"), including the following Liabilities:
(i) all Liabilities relating to or arising out of the pre-Closing Date operation of the Business, including: (A) any Liabilities with respect to any products or services that were sold or provided prior to the Closing Date, including product liability, negligence and infringement claims and any related claims and litigation arising prior to, on or after the Closing Date; (B) any Liabilities arising (1) by reason of any violation or alleged violation of Laws or otherwise under Laws, including any Environmental Law or Health and Safety Law, or (2) by reason of any breach or alleged breach by Seller or any of their its Affiliates of any Contract, commitment or Judgment; and (C) any Liabilities relating to any Proceeding arising out of or in connection with Seller's conduct of the Business or any other conduct of any of Seller's Affiliates, except that Buyer shall assume officers, directors, employees, consultants, agents or advisors on or prior to the following specific liabilities and obligations:Closing Date.
(aii) all Liabilities arising out of, or related to, the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereofExcluded Assets;
(biii) except as set forth in Section 2.3.3(b)all Liabilities under any existing lines of credit or other debt instruments or arrangements, including any drawings thereunder and unpaid interest thereon, and all liabilities and obligations other Liabilities for borrowed money;
(iv) all pre-Closing Date Liabilities arising under the Transferred Contracts, including all Liabilities that arise out of Seller in respect of the Contracts and Permits assigned or transferred relate to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach of contract, breach of warranty, tort, infringement or default byviolation of Law or other similar event, occurrence or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing omission on or prior to the Closing Date;
(cv) all Liabilities to or with respect to Seller's Affiliates (including those Affiliates named in Section 3.28) and Seller's current or former shareholders, employees and consultants (including Xxxxxx Xxxxxxxxx, Xxxxx Xxxxx and Xxxx De La Xxxxx), including any Liabilities under or with respect to Seller's existing or former employee compensation, benefit plans, programs, policies or arrangements, including Seller's Liabilities under any multiemployer pension plans (whether incurred as a result of the Buyer's IDRB Obligationstransactions contemplated hereby or otherwise), except as set forth in Section 5.07(b);
(dvi) all Liabilities for Taxes, including any liability, Liability or obligation of Seller in respect of any amount of Taxes which are imposed on or responsibility measured by the income or profits of Seller for conditions at any period;
(vii) all Liabilities for any costs and expenses incurred by Seller in connection with this Agreement and the Real Estatetransactions contemplated by this Agreement, whether based on statutory or common lawincluding any Liabilities in favor of Xxxxxxxx & Xxxx, now or hereafter in effectLLP, known or unknownRSM McGladrey, contingent or actualInc. and Catalina Capital Advisors LP;
(viii) the Gardena Lease, as such lease may be amended from time to time;
(ix) any Liabilities relating to or arising from pollution, contamination or protection out of the environmentacquisition of assets from a Person formerly known as Interstate Scaffolding, human health Inc., whether such Liabilities are in the form of deferred purchase price or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Businessotherwise; and
(hx) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in Liabilities under this Agreement, except to Agreement and the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the BusinessRelated Agreements.
Appears in 1 contract
Samples: Asset Purchase Agreement (Brand Energy & Infrastructure Services, Inc)
Assumption of Certain Liabilities. 2.3.1 Buyer The Purchaser agrees to assume at the Closing the Assumed Liabilities and agrees to perform the obligations incident thereto. The Assumed Liabilities shall not assume include any liabilities obligation or liability arising from any default, breach, misfeasance, malfeasance or nonfeasance by the Seller prior to the Closing. Nothing contained in this Section 2 or in any instrument or assumption executed by the Purchaser at the Closing shall be deemed to release or relieve the Seller from its respective representations, warranties, covenants and agreements contained in this Agreement or any certificate, schedule, instrument or document executed pursuant hereto or in connection herewith, including, without limitation, the obligations of Citizens the Seller to indemnify the Purchaser in accordance with the provisions of this Agreement. The Assumed Liabilities shall not include any liability or obligation of the Seller arising out of or relating to (a) any actual or alleged tortious conduct of the Seller or any of their Affiliatesits employees or agents, except that Buyer shall assume the following specific liabilities and obligations:
(a) the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b3.3, any product liability claim related to a home delivered to a home buyer prior to Closing, (c) any claim for breach of warranty or contract by the Seller, (d) any claim predicated on strict liability, (e) the violation by Seller of any law, ordinance or regulation in effect prior to the Closing, (f) any business or business activities of the Seller which are not part of the Seller's Business, (g) any liability for expenses or taxes, if any, in connection with, resulting from, or arising out of this Agreement or the transactions contemplated hereby, (h) any liability of the Seller for any federal, state or local taxes of any kind or character (other than taxes assumed under this Agreement), all liabilities and obligations of Seller in respect (i) any liability of the Contracts and Permits assigned Seller under or transferred to Buyer pursuant to arising by reason of this Agreement in accordance with the respective terms thereofAgreement, except that Buyer shall not assume or (j) any liabilities or obligations liability for any breach amounts payable under the Contracts or default by, or payment obligations ofunder any other agreement to which the Seller is a party for the period prior to the Closing Date except as shown on the Accrual and Deposits Schedule. In particular, Seller shall pay and remain solely responsible for all trade payables under such the Contracts and Permits occurring or arising or accruing on or otherwise which apply to units closed prior to the Closing Date;
(c) . The Seller hereby indemnifies and holds harmless the Buyer's IDRB Obligations;
(d) Purchaser against any liabilitylosses, obligation costs, damages, or responsibility of Seller for conditions at fees arising or related to the Real Estate, whether based period on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline before Closing or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim amounts payable for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, of the Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed Included Assets arising or related to the period on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume before Closing other than the Assumed Liabilities. Each of Parent The Purchaser hereby indemnifies and Buyer hereby irrevocably and unconditionally waives and releases holds harmless the Seller Parties from all Assumed Liabilities and all liabilities against any losses, costs, damages, or obligations exclusively fees arising or relating to the Business period on or the Acquired Assets to the extent arising from events or occurrences after the Closing or other amounts payable for any liabilities or obligations of the Purchaser relating to the extent otherwise Included Assets arising or relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that the Assumed Liabilities. The indemnifications contained in this Section shall not constitute a waiver and release be subject to the provisions of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or Section 14. The obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for and the Assumed Liabilities as specifically Purchaser pursuant to this Section shall survive the Closing and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained the transactions contemplated by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Assets (Calton Inc)
Assumption of Certain Liabilities. 2.3.1 (a) Buyer shall not assume any liabilities Liabilities of Citizens or Seller or any except for those Liabilities which Buyer expressly assumes pursuant to this Section 2.2(a). On the terms and subject to the conditions of their Affiliatesthis Agreement, except that Buyer shall shall, on the Closing Date, assume the following specific Liabilities of Seller as of the Closing Date listed on Schedule 2.2(a) (the “Assumed Liabilities”). Notwithstanding any on Schedule 2.2(a) to the contrary, Buyer is not assuming any liabilities and obligations:
(a) arising from periods prior to the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;Closing Date.
(b) except as set forth in Section 2.3.3(b)Seller shall retain and be responsible for paying, all liabilities performing and obligations of Seller in respect of the Contracts discharging when due, and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume or have any liabilities responsibility for, all Liabilities of Seller as of the Closing Date other than the Assumed Liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, the Excluded Liabilities shall include, without limitation, any of the following Liabilities (other than the Assumed Liabilities):
(i) any Liability arising from or obligations for any breach related to the operations of Seller, whenever arising or default byincurred, or payment obligations ofthe ownership of the Products and the Purchased Assets by Seller through the Closing Date;
(ii) any Employment Liability;
(iii) claims (including any threatened claims) for death, Seller under such Contracts and Permits occurring personal injury, property damage or consequential, punitive, or other damages relating to or arising out of any business conducted by Seller;
(iv) the violation or accruing alleged violation of any law, including but not limited to, laws relating to civil rights, health, safety, labor, discrimination, and protection of the environment;
(v) claims (including any threatened claims) of creditors of Seller;
(vi) claims (including any threatened claims) relating to the disposal or arrangement for disposal by Seller of any hazardous substance at any site, location or facility (whether or not owned or leased by Seller);
(vii) any obligation of Seller to indemnify any Person;
(viii) any Taxes of Seller, including any liability for Taxes arising from or attributable to Seller’s operation of the Business or use or ownership of the Purchased Assets for all taxable periods (or portions thereof) ending on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) , and including any liability, obligation or responsibility of Transfer Taxes and Straddle Period Taxes attributable to Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Businessthis Agreement; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(jix) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained for costs and expenses incurred in connection with this Agreement, except to and the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically transactions contemplated hereby and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Businessthereby.
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of the Closing, and from and after the Closing Purchaser shall pay, perform and discharge when due, only the following liabilities, obligations and commitments of Seller (the “Assumed Liabilities”), except to the extent constituting Excluded Liabilities:
(i) all liabilities, obligations and commitments of Seller under the Assigned Contracts and Transferred Permits to the extent such liabilities, obligations and commitments arise from the operation or conduct of the Business after the Closing;
(ii) all liabilities, obligations and commitments to the extent arising from the ownership of the Acquired Assets or the operation of the Business after the Closing;
(iii) all liabilities, obligations and commitments of Seller that constitute “current liabilities”, but only to the extent expressly set forth and quantified on the final and binding Closing Statement and taken into account in the Closing Working Capital Amount (as set forth on the final and binding Closing Statement);
(iv) all liabilities, obligations and commitments for Taxes arising out of or relating to the Acquired Assets or the operation or conduct of the Business, in each case, for any Post-Closing Tax Period; and
(v) all liabilities, obligations and commitments with respect to the Transferred Employees relating to employment or employee benefits that Purchaser has specifically agreed to assume pursuant to this Agreement (the “Covered Employee Liabilities”).
(b) Notwithstanding anything in Section 1.03(a) or any other provision of this Agreement or any Ancillary Agreement to the contrary, and regardless of any disclosure to Purchaser, Purchaser shall not assume or be liable for any liabilities liabilities, commitments or obligations of Citizens or Parent, Seller or any of their Affiliatesaffiliates, except that Buyer of any kind, other than the Assumed Liabilities (the “Excluded Liabilities”), all of which shall assume be retained and paid, performed and discharged when due by Parent, Seller or their affiliates, as applicable, including the following specific liabilities and obligationsfollowing:
(ai) the obligations and liabilities set forth in Sections 5.9any Indebtedness of Parent, 5.10Seller or any of their affiliates, 5.11 and 5.12 hereofor any Guarantee by Parent, Seller or any of their affiliates of any Indebtedness;
(bii) except any liability, obligation or commitment (A) arising out of any actual or alleged breach by Parent, Seller or any of their affiliates of, or nonperformance by Seller under, any Contract (including any Assigned Contract) prior to the Closing or (B) accruing under any Assigned Contract or Transferred Permit with respect to any period prior to the Closing; Table of Contents
(iii) any liability, obligation or commitment arising out of (A) any Proceeding, whether or not such Proceeding is pending as of the Closing, arising from the operation or conduct of the Business prior to the Closing or Seller’s ownership of any Acquired Asset or Excluded Asset prior to the Closing or (B) any actual or alleged violation by Parent, Seller or any of their affiliates of any Applicable Law prior to the Closing;
(iv) any “current liability” of Seller to the extent not expressly identified and quantified on the final and binding Closing Statement and taken into account in the Closing Working Capital Amount (as set forth on the final and binding Closing Statement);
(v) any liability, obligation or commitment of Seller that relates to, or that arises from, any Excluded Asset, or that arises out of the distribution to, or ownership or operation by, Seller of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(vi) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable, (A) arising out of or relating to the Acquired Assets or the operation or conduct of the Business, in each case, for any Pre-Closing Tax Period or (B) of Seller for any taxable period, except as provided in Section 2.3.3(b1.03(a)(iv) (provided that for purposes of this clause (vi), Section 1.02(a)(xiv), Section 1.02(b)(vi) and Section 1.03(a)(iv), all liabilities real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a taxable period that includes (but does not end on) the Closing Date shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period based on the number of Seller in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under days during such Contracts and Permits occurring or arising or accruing taxable period elapsed on or prior to the Closing Date and the number of days during such taxable period elapsed after the Closing Date);
(c) the Buyer's IDRB Obligations;
(dvii) any liability, obligation or responsibility of Seller commitment for conditions at the Real Estatetransfer, whether based on statutory or common lawdocumentary, now or hereafter sales, use, registration, value-added and other similar Taxes (including all applicable real estate transfer Taxes and real property transfer gains Taxes) and related amounts (including any penalties, interest and additions to Tax) incurred in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoingconnection with this Agreement, the "Pre-Existing Conditions"Ancillary Agreements, the Acquisition and the other transactions contemplated hereby and thereby (“Transfer Taxes”);
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(gviii) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assetscommitment, including with respect any On-Site Environmental Liability, arising out of (A) any actual or alleged violation of any Environmental Law prior to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets Release of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating Hazardous Materials at any location prior to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired AssetsClosing, or (2C) that relates any Environmental Claim arising from, based upon or relating to any breach conditions existing or default (events or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or omissions occurring prior to the Closing Date;
(i) any liability or obligation Closing, in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability each case to the extent arising out of or relating to the ownership or operation of the Acquired Assets or Business, the Business prior to the Closing Date (including Property or any predecessor operations)other property currently or formerly owned, any claims, obligations leased or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated operated in connection with any business other than the Business.;
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer Seller shall not assign ---------------------------------- and Purchaser will assume any certain liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(bon the Closing Balance Sheet of Seller which shall be one of the Closing Financial Statements (as defined hereinafter), and as approved by Purchaser (the "Assumed Liabilities"). Assumed Liabilities shall include accounts payable, "Bonus Accrual" as defined in Paragraph 14 hereof (upon which Purchaser shall withhold all applicable federal, state and local taxes as required by law), accrued expenses, payroll taxes and other liabilities arising in the ordinary course of business, provided all such liabilities are disclosed to Purchaser on the Closing Balance Sheet delivered pursuant to Paragraph 14 hereof. Notwithstanding anything to the contrary contained above, Assumed Liabilities shall not include any obligation or liability of Seller with respect to income taxes, penalties and interest thereon; loans or other credit granted to Seller or its officers, directors or employees; pension, profit-sharing or other similar obligations of Seller in respect of the Contracts and Permits assigned whether or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume arising from ERISA qualified or approved plans; any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to items outside the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility ordinary course of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitationbusiness, any CERCLA liabilities for acts or similar liability under any federal omissions of Seller, its officers, directors or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after employees through the Closing Date except that Buyer shall which are not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller disclosed on the Closing Date Balance Sheet and relating approved in writing by Purchaser (including but not limited to contingent liabilities, and any pending or threatened claims, proceedings, actions, or investigations, whether or not asserted before Closing). Purchaser will advise Seller promptly upon receipt of the Business; Closing Balance Sheet of any liabilities disclosed thereon which Purchaser will not accept as an Assumed Liability. Seller shall have five (5) days thereafter to dispute same in writing and
(h) all liabilities , if disputed, the accountants for Purchaser and obligations imposed on Buyer by Seller shall make best faith efforts to resolve same. Notwithstanding, Seller shall remain liable therefore pending resolution of the dispute. Purchaser may, in its discretion, pay any PUC disputed liability, and shall be entitled to offset the amount paid against any payments due under the Note and Royalty Agreement upon resolution of the dispute in its favor. Seller will indemnify Purchaser for any liability other than Assumed Liabilities which are asserted against Purchaser in connection with the operation transaction or the Assets acquired hereby, including reasonable attorneys fees. Purchaser shall give prompt written notice to Seller of any such asserted liabilities and Seller shall have a reasonable opportunity to defend. In the event such liability is not paid by Seller, or the claim against Purchaser dismissed within sixty (60) days of the Business date of notice to Seller, or adequate security or bond provided to Purchaser and acceptable to Purchaser's counsel, Purchaser may offset the ownership amount of the Acquired Assets, including with respect to such liabilities (and its reasonable attorneys fees) against any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver payments due to Seller an assumption agreementor Mr. Shapiro under this Agreement or any document executed xx xxxxxxxion herewith, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement")including, pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating but not limited to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA Note and Royalty Agreement (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Selleras hereinafter defined).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Touchstone Applied Science Associates Inc /Ny/)
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations Liabilities of Seller in respect of the Contracts and Permits assigned or transferred to except for those Liabilities which Buyer expressly assumes pursuant to this Agreement in accordance with Section 0. On the respective terms thereofand subject to the conditions of this Agreement, except that Buyer shall, on the Closing Date, only assume those Liabilities of Seller, if any, as of the Closing Date, which are detailed on Schedule 2.2(a) (the “Assumed Liabilities”). Seller shall retain and be responsible for paying, performing and discharging when due, and Buyer shall not assume or have any responsibility for, any Liabilities of Seller as of the Closing Date other than the Assumed Liabilities (such Liabilities, other than the Assumed Liabilities being referred to herein as “Retained Liabilities”). Without limiting the generality of the foregoing, the retained liabilities shall include, without limitation, all of the following Liabilities: (i) any claims or obligations Liabilities of creditors of Seller that do not relate to the Business or the Purchased Assets; (ii) any Taxes of Seller for any breach taxable period, including any liability for Taxes arising from or default by, attributable to the operation of the Business or payment obligations of, Seller under such Contracts and Permits occurring use or arising ownership of the Purchased Assets for any taxable periods (or accruing portions thereof) ending on or prior to the Closing Date;
Date (c) the Buyer's IDRB Obligations;
“Pre-Closing Tax Period”), and including any Transfer Taxes (das such term is defined in Section 0), in each case alllocable to Seller pursuant to this Agreement; (iii) any liability, obligation or responsibility Liability of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination out of or protection of incurred in connection with this Agreement and the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoingtransactions contemplated hereby and thereby, including without limitation, transaction related costs and expenses; (iv) any CERCLA or similar liability Liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or contract arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Partiesa breach of, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability default under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or contract prior to the Closing Date;
; (iv) all Employee Liabilities; (vi) any liability Liability of the Seller to any Affiliate of the Seller or obligation other related Person of the Seller; (vii) any Liability to indemnify, reimburse or advance any amounts to any Employee or to any officer, director or agent of the Seller; (viii) any Liability to distribute to any of the Seller’s shareholders or otherwise apply all or any part of the consideration received by the Seller under this Agreement; (ix) any Liability in respect of leased premises of Seller commonly known as 7000 0xx Xxxxxx XX, Xxxxxxx, Xxxxxxx, Xxxxxx or any other leased premises used by Seller in the Excluded Assets;
Business; (jx) any liability or obligation Liability in respect of any of inter-company debt, loans or similar agreements or arrangements between the Seller Parties or and any of their Affiliates existing as a result of its Affiliates; and (xi) any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent Liability arising out of or relating to resulting from the ownership Seller’s compliance or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated non-compliance with any business other than the Businessapplicable law.
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser agrees to assume, pay, perform and discharge when due, all liabilities or obligations listed in this Section 2.2, and only such liabilities or obligations listed in this Section 2.2, whether arising before or after the Closing and whether known or unknown, fixed or contingent (the "Assumed Liabilities"):
(i) All liabilities set forth on the summary adjusted balance sheet and income statement of the Company as of December 31, 1998, a copy of which is included as Exhibit 2.2 (the "Adjusted December 31, 1998 Balance Sheet") or arising thereafter in Sections 5.9the ordinary course of business; and
(ii) all liabilities for payment or performance under the terms of the Commitments, 5.10, 5.11 and 5.12 hereof;except Commitments excluded pursuant to Section 10.3(b).
(b) except as set forth Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall assume only the Assumed Liabilities, and neither Purchaser nor any of its Affiliates shall assume any other liability or obligation of the Sellers (or any predecessor owner of all or part of the Business) of whatever nature whether presently in Section 2.3.3(b), all existence or arising hereafter. All such other liabilities and obligations of Seller in respect shall be retained by and remain obligations of the Contracts and Permits assigned Sellers (or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (bpredecessor owner) (all such liabilities and if Buyer has given written notice prior obligations not being assumed being herein referred to as the expiration "Excluded Liabilities"). Without limiting the generality of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");Excluded Liabilities shall include the following:
(ei) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant attributable to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties Excluded Assets, or any of their Affiliates except for associated with the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each realization of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(jii) all Tax liabilities (excluding the Permitted Encumbrances);
(iii) all liabilities and obligations relating to compensation and any liability pension, deferred compensation, vacation, medical benefit, life insurance, severance or obligation other employee health or safety matters and any other employee benefit plans, programs or arrangements associated with or relating to the employment in the Business, prior to the Closing, of any employee or former employee (including, but not limited to, all Employee Benefit Plans) and all liabilities and obligations relating to or arising from the employment or cessation of the Seller Parties or any of their Affiliates existing as a result employment of any act, failure such employee prior to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreementthe Closing, except to the extent set forth in Section 7.4; orthat such liabilities are accrued on the Closing Date Balance Sheet;
(kiv) except for the Assumed Liabilities as specifically all liabilities and expressly set forth hereinobligations arising from worker's compensation claims relating to pre-Closing events;
(v) all liabilities and obligations covered, any liability but only to the extent covered, by any insurance maintained by the Sellers or any of their respective Affiliates;
(vi) Commitments excluded pursuant to Section 10.3(b);
(vii) all liabilities and obligations arising out from the suits, claims and actions described on Exhibit 5.19; and
(viii) all other liabilities and obligations of or the Sellers to the extent not relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Standard Automotive Corp)
Assumption of Certain Liabilities. 2.3.1 Buyer (a) Subject to Section 1.4(b), the Purchaser shall not assume any liabilities Liabilities of Citizens the Seller (whether or not related to the Transferred Assets or the Business), including without limitation: (i) any Liabilities of the Seller or relating to the Excluded Assets; (ii) any Tax Liabilities of their Affiliatesthe Seller, except to the extent allocated to the Purchaser under Sections 1.5 and 5.4(b); (iii) any Liabilities of the Seller relating to accounts payable or other indebtedness; (iv) any wages or salaries or other Liabilities relating to employment (or termination of employment) of any employees of the Seller (including accrued vacation); (v) any Liabilities under any Seller Contracts (other than Liabilities relating to Transferred Contracts that Buyer shall assume arise after the following specific liabilities and obligations:
Closing Date); or (avi) any other Liabilities of the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;Seller.
(b) except Notwithstanding Section 1.4(a) or any other provision of this Agreement to the contrary, from and after the Closing, the Purchaser shall assume, discharge and perform as set forth in Section 2.3.3(b), and when due all liabilities and of the obligations of the Seller in respect under the Transferred Contracts, including assuming liability for any claims based on or relating to the transfer of the Contracts and Permits assigned or transferred Product Materials acquired from [**] by the Seller to Buyer the Purchaser pursuant to this Agreement Agreement, but in accordance with any case only to the respective terms thereof, except extent that Buyer shall such obligations: (i) arise after the Closing Date and (ii) do not assume any liabilities arise from or obligations for relate to any breach by the Seller of any provision of any of such Transferred Contracts; and (iii) do not arise from or default byrelate to any event, circumstance or payment obligations of, Seller under such Contracts and Permits condition occurring or arising or accruing existing on or prior to the Closing Date;
Date that, with notice or lapse of time, would constitute or result in a breach of any of such Transferred Contracts (c) the Buyer's IDRB Obligations;
“Assumed Liabilities”). Notwithstanding the terms of that certain Consent Letter by and among the Purchaser, the Seller and The Rockefeller University, dated November 30, 2011 (d) any liabilitythe “Consent Letter”), obligation or responsibility for purposes of clarity, the Seller for conditions at acknowledges and agrees that the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection Purchaser is only assuming the obligations of the environment, human health or safety or natural resources or relating to or arising from Seller under the presence or Release or threat of Release of Hazardous Substances into Rockefeller License Agreement and the environment at Ancillary Agreements (as defined in the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating Consent Letter) subject to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period limitations set forth in Section 7.3.2(a) or (b) (the prior sentence and, if any conflict exists between the Consent Letter and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities this Agreement shall control as specifically between Seller and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the BusinessPurchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Momenta Pharmaceuticals Inc)
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) Upon the obligations terms and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior subject to the Closing Date;
(c) conditions of this Agreement, Purchaser and the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer Cytec Parties shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller at the Closing an assumption agreementAssumption Agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A M (the "Assumption Agreement"), pursuant to which Buyer Purchaser shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably agree to pay, perform and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and discharge when due, all liabilities or obligations exclusively relating to the Business whatsoever, whether arising before or the Acquired Assets to the extent arising from events or occurrences after the Closing and whether known or unknown, fixed or contingent, other than the Excluded Liabilities, that relate primarily to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising primarily out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as operation of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, Business (the "Retained Assumed Liabilities"). Each , including:
(i) all obligations and liabilities of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or Parent (which arise by statute or common lawterm, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(aSection 2.03(a), shall exclude Cyanamid) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to Seller under the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or incomeAcquired Contracts;
(bii) all refund obligations relating to the advances existing on the Closing Date for construction Business Accounts Payable in existence as of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(fiii) except all obligations and liabilities in respect of any and all acrylic fiber or activator sold by the Business at any time, including obligations and liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability and other claims;
(iv) all obligations and liabilities of Parent or Seller in respect of amounts paid by any customer of the Business in excess of amounts owed by such customer;
(v) all obligations and liabilities arising as a result of the ownership or occupancy of Parent or Seller, or the operation of the activities conducted at, the Santa Rosa Facility or any Leased Property, other than the Exxxxxed Real Property, including all obligations and liabilities relating to personal injury or Environmental Laws, other than Off-Site Environmental Liabilities and Escambia Bay Liabilities;
(vi) all obligations and liabilities of Parent or Seller to or in respect of any current or former employee of the Business, other than any obligations or liabilities arising under or in connection with the Excluded Contracts;
(vii) all the obligations and liabilities arising under or in connection with the Benefit Plans to the extent set forth in assumed by Purchaser under Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets5.05;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(hviii) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject Taxes attrib utable to the penultimate sentence of Section 2.4, that is not transferred Business or relating to Buyer as part of the Acquired Assets, other than Taxes based on gross receipts, income or (2) that relates to profits for any breach or default periods (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a defaultportions thereof) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed ending on or prior to the Closing Date;
(i) any liability or obligation in respect of Date and other than Taxes that are the Excluded Assets;
(j) any liability or obligation responsibility of any of the Seller Cytec Parties pursuant to Section 5.07; and
(ix) subject to Section 2.02(c), all obligations and liabilities arising out of the Business which pertain to Business Intellectual Property;
(x) any Sterling Specified Exposure Liability; and
(xi) any Sterling Escambia Bay Liability. Notwithstanding anything contained herein or in the Assumption Agreement to the contrary, Purchaser shall not be responsible for, and the Assumed Liabilities shall not include, the Excluded Liabilities, all of which the Cytec Parties agree to retain, pay, perform, fulfill, discharge and remain responsible for. Nothing in this Section 2.03(a) or in any Ancillary Agreement is intended to negate or impair the indemnification obligations of their Affiliates existing as a result of any act, failure to act the Cytec Parties under Article VIII or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained elsewhere in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cytec Industries Inc/De/)
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) Upon the obligations terms and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior subject to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liabilityconditions of this Agreement, obligation or responsibility of Seller for conditions at the Real EstatePurchaser shall assume, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable effective as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all from and after the Closing Purchaser shall pay, perform and discharge when due, only the following liabilities, obligations and commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the subject to Purchaser’s right to dispute such liabilities and obligations exclusively related in good faith with parties to any common plant assets included among the Acquired Assets);
whom such obligations are owed provided such right shall not diminish Purchaser’s indemnity obligations under Article VIII) (e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any such liability, obligation or responsibility of any of obligations and commitments being the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting “Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;”):
(i) any liability and all payment and performance liabilities, obligations and commitments of Seller under the Assigned Contracts whether incurred before, on or obligation in respect of after the Excluded AssetsClosing and including all unpaid rebates and refunds to customers;
(jii) any liability or obligation all accounts payable and accrued liabilities of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of the operation or relating to the ownership or operation conduct of the Acquired Assets or the Business prior to the Closing Date and contained in the Closing Balance Sheet (including any predecessor operationsas defined in Section 1.05(a)), excluding outstanding uncleared checks of Seller;
(iii) any claims, obligations or litigation and all Unknown Environmental Liabilities but only to the extent Seller is not required to indemnify an indemnified party under Section 8.01(a)(iv); and
(iv) all other liabilities, obligations and commitments, whether known or unknown, express or implied, absolute, contingent or otherwise, arising out of the operation or relating to events conduct of the Business or conditions occurring before Acquired Asset after the Closing DateClosing.
(b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, and regardless of any liability associated disclosure to Purchaser, Purchaser shall not assume any of the following liabilities, obligations and commitments of Seller (the “Excluded Liabilities”), each of which shall be retained and paid, performed and discharged when due by Seller or Parent (subject to Seller’s and Parent’s right to dispute such liabilities and obligations in good faith with any business other than the Business.parties to whom such obligations are owed provided such right shall not diminish Seller’s or Parent’s indemnity obligations under Article VIII). The term “Excluded Liability” means:
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) With the obligations and exception of those liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to expressly assumed by Buyer pursuant to this Agreement in accordance with the respective terms thereofprovisions of subparagraph 3(b) (the "Liabilities"), except that Buyer shall does not assume and shall in no event be liable for any debts, liabilities or obligations of Seller, whether fixed or contingent, known or unknown, liquidated or unliquidated, secured or unsecured, or otherwise. Without limiting the foregoing, Buyer does not assume (i) any liability for Taxes (as hereinafter defined) payable for any breach periods prior to and including the Closing Date, (ii) any long term or default bybank debt, (iii) any liability or payment obligations ofobligation to any employee, Seller director, officer or stockholder of Seller, including without limitation, any liability in connection with any Employee Benefit Plan (as hereinafter defined), (iv) any trade payables, (v) any liability or obligation for brokerage commissions, finders' fees or professional services of any kind incurred in connection with the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby, (vi) any liability or obligation arising under such Contracts and Permits any arbitration or litigation proceeding, whether or not disclosed in this Agreement, (vii) any liability or obligation arising from events occurring or arising or accruing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common lawnot disclosed in this Agreement, now or hereafter in effectincluding, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA liability or similar liability under obligation arising from (A) environmental matters, (B) the infringement by Seller upon any federal intellectual property rights of others, or state (C) the failure to comply with any requirements of law or regulation, except to any requirements of governmental bodies or agencies having jurisdiction over Seller or the extent Buyer has given written notice conduct of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligationsSeller's business, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(dviii) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any actof, failure to act or other state of facts or occurrence which constitutes existence constitutes, a breach or violation of any of Seller's representations, warranties, warranties or covenants or agreements contained in this Agreement. Seller and each of the Principals, except jointly and severally, agree to indemnify Buyer and ORC and their respective officers, directors and agents, from, against and in respect of any liabilities or obligations of Seller not assumed by Buyer hereunder. Notwithstanding the foregoing, any expenses incurred by Buyer in defending any suits or claims relating to the extent foregoing, including reasonable costs and attorney's fees, shall be subject to, and applied against, the sum of $150,000 set forth in Section 7.4; orsubparagraph 8(b) of this Agreement
(kb) except for Buyer hereby assumes only the Assumed Liabilities as specifically following liabilities and expressly set forth herein, any liability to the extent obligations of Seller:
(i) liabilities and obligations arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to from and after the Closing Date under the Seller Agreements,
(including any predecessor operations), any claims, ii) all obligations or litigation to the extent arising out complete open customer sales orders reflected on Seller's books and records as of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than and
(iii) the Businessobligation to maintain $125,000 of insurance on the life of Xxxxxxx Statis while he is employed by Buyer or its successor or assignee.
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) Subject to the terms and conditions of this Agreement, on the Closing Date, the Buyer hereby assumes only (i) the liabilities, debts, and obligations of the Business based upon events occurring, arising, and liabilities incurred after the Closing, (ii) all contracts, commitments, leases, instruments and agreements set forth in Sections 5.9on Schedule 1.2(a) hereby (the "Assigned Contracts") to the extent any liability is based upon events occurring, 5.10arising, 5.11 and 5.12 hereof;incurred after the Closing or as set forth on Schedule 1.4(b) and (iii) those debts, liabilities and obligations of the Business as set forth on Schedule 1.2 (the "Assumed Liabilities").
(b) except as set forth in Unless otherwise listed on Schedule 1.2 or relating to liabilities and obligations for which Buyer is responsible under Section 2.3.3(b)5.4 hereof, the Seller shall be solely responsible for, and shall promptly discharge, any and all liabilities liabilities, claims and obligations of Seller not included within the Assumed Liabilities. Except as otherwise specifically provided in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereofSection 1.2 (including as set forth on Schedule 1.2), except that Buyer shall not assume assume, be liable for or incur any liabilities cost or expense respecting any obligation or liability of Seller listed below, or any other obligation, liability or claim relating to or incurred by the Seller and its operations prior to the Closing Date or to the Purchased Assets, of any kind or nature, known, unknown, matured, unmatured, contingent, or otherwise including liabilities, claims or obligations for any breach that have or default bymay arise in the future from events, facts, conditions or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing circumstances existing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Excluded Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made claims respecting such Excluded Liabilities were, or may be asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or but not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;limited to:
(i) any liability or obligation in respect of the Excluded AssetsSeller arising out of any contract or lease, including, without limitation, any liability or obligation arising from a breach or default by Seller under any contract or lease or from a wrongful transfer thereof to Buyer;
(jii) any liability or obligation to Seller's employees or former employees arising from job related events occurring prior to the Closing Date, including, without limitation, any liabilities or obligations relating to its personnel policies, wages, salary, compensation, (other than bonuses and commissions accrued through the Closing Date and vacation pay, all as set forth on Schedule 1.2), terms and conditions of employment, employment agreements, severance pay, or pension, profit-sharing or welfare benefit plans for such employees or former employees or any Seller Employee Program (as hereinafter defined) or any liability or obligation of Seller relating to or arising out of working conditions, unfair labor practice charges, job hazards, or job related events occurring prior to the Closing Date or any liability or obligation of Seller for workers compensation or disability claims relating to events occurring prior to the Closing Date, regardless of the time of the provision of services, materials or supplies or payment for the same;
(iii) any litigation, proceeding, action, or claim by any person or entity or other obligation of Seller prior to the Closing Date or otherwise relating to the Purchased Assets whether or not such litigation, proceeding, claim, or obligation is pending, threatened, or asserted before, on, or after the Closing Date;
(iv) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or in any way relating to the ownership or operation resulting from any sale of the Acquired Assets or the Business products by Seller prior to the Closing Date (including any predecessor operationsliability or obligation of Seller for claims made for injury to person or damage to property, whether made in product liability, tort, breach of warranty, or otherwise);
(v) any Taxes of Seller (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement and the transactions provided for herein), including but not limited to any claims, obligations or litigation to the extent liability for Taxes arising out of the inclusion of Seller in any group filing consolidated, combined, or relating unitary tax returns or arising out of any transferred liability, provided that Buyer assumes liability for all Taxes which Buyer has agreed to events or conditions occurring pay under Section 4.1 hereof;
(vi) any obligations of Seller arising (A) before the Closing Date, Date with respect to the Business and (B) at any liability associated time with any respect to the rest of Seller's business other than the Business, under any Law, including, without limitation, antitrust, civil rights, health, safety, labor, discrimination, and environmental laws;
(vii) any and all liabilities or obligations of the Seller (or any predecessor owner of and or part of its business and assets) of any kind whatsoever arising under any Environmental Law ("Environmental Liabilities"). For purposes hereof, the term "Environmental Law" means any federal, state, foreign and local statutory laws, ordinances, codes, rules, regulations, approvals or requirements of any governmental authority, court orders, administrative orders, executive orders, consent decrees, injunctions, judgments, and common law pertaining to (i) health, safety, natural resources, wildlife or the environment, or (ii) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release, threatened release, abatement, removal, remediation or handing of, or exposure to, any petroleum products or Hazardous Materials (as hereinafter defined) and all amendments, modifications and additions thereto, or any similar, implementing or successor law.
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 On the Closing Date, Buyer shall not assume any liabilities of Citizens or Seller or be obligated to assume, and shall not assume, any of their Affiliatesthe liabilities and obligations of Seller, whether existing as of the Effective Time, or asserted or first arising after the Effective Time and relating to events that occurred before the Effective Time, or otherwise, which liabilities and obligations Seller agrees to pay and discharge (collectively, the "Excluded Liabilities"), except that Buyer shall assume and agree to pay, perform and discharge the following specific liabilities and obligationsobligations of Seller as of the Effective Time, which shall be assumed by Buyer on the Closing Date as of the Effective Time:
(a) the future obligations of Seller under the Contracts and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereofthe Permits;
(b) except as set forth provided to the contrary in Section 2.3.3(b)Sections 2.1(e) and 11.2 and the Assignment and Assumption Agreement, all liabilities and the future obligations of Seller in with respect to the Real Property, the Additional Property (if applicable) and the Leasehold Property, including Seller's obligations under the Bellwood Quarry Lease and the Rockmart Quarry Lease, including Environmental Liability; and
(c) subject to Seller's delivery of the Contracts and Permits assigned or transferred Asphalt Supply Agreement in the form contemplated by Section 2.1(e), Seller's liability to Buyer Xxxxxx County, Georgia for royalty payments pursuant to the Bellwood Quarry Lease. Anything to the contrary in this Agreement in accordance with the respective terms thereofor otherwise notwithstanding, except that Buyer shall not assume assume, and shall have no liability with respect, to any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are not expressly assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closingthis Article III, Parent shall cause Buyer to execute and deliver to Seller an assumption agreementincluding, in substantially the form without limitation, any of the Assumption Agreement attached hereto as Exhibit A following items, each of which items shall constitute an Excluded Liability hereunder:
(the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities i) any liability or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims obligation arising out of any Employee Benefit Plan (as hereinafter defined) maintained by or covering employees of Seller or to which Seller has made any contribution or to which Seller could be subject to any liability; (ii) any losses, costs, expenses, damages, claims, demands and judgments of every kind and nature (including the contractual relationships defenses thereof and indemnification arrangements between Buyer reasonable attorneys' and other professional fees) related to, arising out of, or in connection with Seller).
2.3.3 Buyer shall not assume 's failure to comply with any liabilitiesbulk sales or transfer act or any similar statute as enacted in any jurisdiction, commitments domestic or obligations foreign; (contingent iii) any liability or absolute and whether obligation arising out of any breach by Seller or not determinable as of the Closing) of any of the Shareholders prior to the Effective Time of any provision of any contract to which Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically Shareholders is a party and expressly provided for above, whether such liabilities any liability or obligations relate obligation of Seller related to payment, the performance required under the Contracts and the Permits before the Effective Time; (iv) any liability of Seller or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each any of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including Shareholders with respect to any liabilities created claim or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release cause of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or propertyaction, regardless of when made or asserted, to the extent that it which arises (A) out of or is based upon in connection with the business and operations of Seller prior to the Effective Time, (B) with respect to any product purchased or manufactured or any service provided by Seller prior to the Effective Time, including, without limitation, any liability or obligation of Seller or any of the Shareholders (I) pursuant to any express or implied representation, warranty, agreement agreement, or guarantee made by any of the Seller Parties or any of their Affiliates prior to ClosingSeller, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be (II) imposed by operation of law, in connection with any service performed or product distributed designed, manufactured, sold or sold leased by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closingthe Effective Time, including any claim referred to above in this Section 2.3.3(a) relating to water quality standardsincluding, without limitation, any claim relating related to any product delivered in connection with the performance of services provided by Seller such service and any claim claims seeking recovery to recover for consequential damagesdamage, lost revenue or income;
, including pursuant to any doctrine of product liability, or (bC) all refund obligations relating out of or in connection with the Business and operations of Seller prior to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, Effective Time under any federal, state, foreign or local income law, rule, or other Tax payable with respect regulation relating to the business(I) taxation, assets, properties or operations (II) employment or termination of employment; (v) any liabilities or obligations of Seller or any of the Seller Parties or any member of any affiliated group of which any of them is a member.
Shareholders relating to the Retained Assets; (dvi) any liability or obligation associated with obligation, arising prior to the Effective Time or in connection with any common plant assets as a result of Seller (other than the liabilities and obligations exclusively related Closing, to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 aboveemployee, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents agent or independent contractors contractor of any of the Seller Parties or any of their AffiliatesSeller, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal Employee Benefit Plan maintained by or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any covering employees of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.;
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) Upon the obligations terms and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior subject to the Closing Date;
(c) conditions of this Agreement, Purchaser and the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation, any CERCLA or similar liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer Cytec Parties shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller at the Closing an assumption agreementAssumption Agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A M (the "Assumption Agreement"), pursuant to which Buyer Purchaser shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably agree to pay, perform and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and discharge when due, all liabilities or obligations exclusively relating to the Business whatsoever, whether arising before or the Acquired Assets to the extent arising from events or occurrences after the Closing and whether known or unknown, fixed or contingent, other than the Excluded Liabilities, that relate primarily to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising primarily out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as operation of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, Business (the "Retained Assumed Liabilities"). Each , including:
(i) all obligations and liabilities of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or Parent (which arise by statute or common lawterm, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(aSection 2.03(a), shall exclude Cyanamid) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to Seller under the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or incomeAcquired Contracts;
(bii) all refund obligations relating to the advances existing on the Closing Date for construction Business Accounts Payable in existence as of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(fiii) except all obligations and liabilities in respect of any and all acrylic fiber or activator sold by the Business at any time, including obligations and liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability and other claims;
(iv) all obligations and liabilities of Parent or Seller in respect of amounts paid by any customer of the Business in excess of amounts owed by such customer;
(v) all obligations and liabilities arising as a result of the ownership or occupancy of Parent or Seller, or the operation of the activities conducted at, the Santa Xxxx Facility or any Leased Property, other than the Excluded Real Property, including all obligations and liabilities relating to personal injury or Environmental Laws, other than Off-Site Environmental Liabilities and Escambia Bay Liabilities;
(vi) all obligations and liabilities of Parent or Seller to or in respect of any current or former employee of the Business, other than any obligations or liabilities arising under or in connection with the Excluded Contracts;
(vii) all the obligations and liabilities arising under or in connection with the Benefit Plans to the extent set forth in assumed by Purchaser under Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets5.05;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(hviii) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject Taxes attributable to the penultimate sentence of Section 2.4, that is not transferred Business or relating to Buyer as part of the Acquired Assets, other than Taxes based on gross receipts, income or (2) that relates to profits for any breach or default periods (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a defaultportions thereof) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed ending on or prior to the Closing Date;
(i) any liability or obligation in respect of Date and other than Taxes that are the Excluded Assets;
(j) any liability or obligation responsibility of any of the Seller Cytec Parties pursuant to Section 5.07; and
(ix) subject to Section 2.02(c), all obligations and liabilities arising out of the Business which pertain to Business Intellectual Property;
(x) any Sterling Specified Exposure Liability; and
(xi) any Sterling Escambia Bay Liability. Notwithstanding anything contained herein or in the Assumption Agreement to the contrary, Purchaser shall not be responsible for, and the Assumed Liabilities shall not include, the Excluded Liabilities, all of which the Cytec Parties agree to retain, pay, perform, fulfill, discharge and remain responsible for. Nothing in this Section 2.03(a) or in any Ancillary Agreement is intended to negate or impair the indemnification obligations of their Affiliates existing as a result of any act, failure to act the Cytec Parties under Article VIII or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained elsewhere in this Agreement, except to the extent set forth in Section 7.4; or.
(kb) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.The term "Excluded Liabilities" shall mean:
Appears in 1 contract
Assumption of Certain Liabilities. 2.3.1 Buyer The Purchaser agrees to assume at the Closing the Assumed Liabilities and agrees to perform the obligations incident thereto. The assumption shall include those Options that meet the requirements set forth in Section 6.1.26 of this Agreement on and as of the Closing Date. The Assumed Liabilities shall not assume include any liabilities obligation or liability arising from any default, breach, misfeasance, malfeasance or nonfeasance by the Seller prior to the Closing. Nothing contained in this Section 2 or in any instrument or assumption executed by the Purchaser at the Closing shall be deemed to release or relieve the Seller from its respective representations, warranties, covenants and agreements contained in this Agreement or any certificate, schedule, instrument or document executed pursuant hereto or in connection herewith, including, without limitation, the obligations of Citizens the Seller to indemnify the Purchaser in accordance with the provisions of this Agreement. The Assumed Liabilities shall not include any liability or obligation of the Seller arising out of or relating to (a) any actual or alleged tortious conduct of the Seller or any of their Affiliatesits employees or agents, except that Buyer shall assume the following specific liabilities and obligations:
(a) the obligations and liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to Buyer pursuant to this Agreement in accordance with the respective terms thereof, except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real Estate, whether based on statutory or common law, now or hereafter in effect, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estate, or from violation of any law relating to the foregoing, including without limitation3.3, any CERCLA or similar product liability under any federal or state law or regulation, except to the extent Buyer has given written notice of a claim for indemnification pursuant to Sections 7.3 and 7.4 hereof prior to the expiration of the claims period set forth in Section 7.3.2(a) or (b) (and if Buyer has given written notice prior to the expiration of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");
(e) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required a home delivered to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller on the Closing Date and relating to the Business; and
(h) all liabilities and obligations imposed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates home buyer prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign claim for breach of warranty or local income or other Tax payable with respect to the business, assets, properties or operations of any of contract by the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above3.3, (d) any liability or obligation with respect to compensation or employee benefits claim predicated on strict liability, (e) the violation of any nature owed law, ordinance or regulation in effect prior to the Closing, (f) any employees, agents business or independent contractors of any business activities of the Seller Parties or any of their Affiliates, whether or which are not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any part of the Seller PartiesSeller's Business, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to any liability for expenses or taxes, if any, in connection with, resulting from or arising out of this Agreement or the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
transactions contemplated hereby, (h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired AssetsSeller for any federal, state or local taxes of any kind or character (2) that relates to any breach or default (or to the extent that it relates to an event which wouldother than taxes assumed under this Agreement), with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
Seller under or arising by reason of this Agreement, or (j) any liability for any amounts payable under the Contracts or obligation of under any of other agreement to which the Seller Parties or any of their Affiliates existing as is a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except party for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business period prior to the Closing Date (including any predecessor operations)except as shown on the Accrual Schedule. In particular, any claims, obligations Seller shall pay and remain solely responsible for all trade payables under the Contracts or litigation otherwise which apply to units closed prior to the extent Closing Date except as shown on the Accrual Schedule. The Seller hereby indemnifies and holds harmless the Purchaser against any losses, costs, damages, fees arising out or related to the period on or before Closing or other amounts payable for any liabilities or obligations of or the Seller relating to events the Included Assets arising or conditions occurring related to the period on or before the Closing Date, and any liability associated with any business other than the BusinessAssumed Liabilities. The indemnification contained in this section shall be subject to the provisions of Section 14. The obligations of the Seller pursuant to this Section shall survive the Closing and the transactions contemplated by this Agreement.
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Assumption of Certain Liabilities. 2.3.1 Buyer shall not assume any liabilities of Citizens or Seller or any of their Affiliates, except that Buyer shall assume the following specific liabilities and obligations:
(a) With the obligations and exception of those liabilities set forth in Sections 5.9, 5.10, 5.11 and 5.12 hereof;
(b) except as set forth in Section 2.3.3(b), all liabilities and obligations of Seller in respect of the Contracts and Permits assigned or transferred to expressly assumed by Buyer pursuant to this Agreement in accordance with the respective terms thereofprovisions of subparagraph 3(b) (the "Liabilities"), except that Buyer shall does not assume and shall in no event be liable for any debts, liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(c) the Buyer's IDRB Obligations;
(d) any liability, obligation or responsibility of Seller for conditions at the Real EstateSeller, whether based on statutory fixed or common law, now or hereafter in effectcontingent, known or unknown, contingent liquidated or actualunliquidated, relating to secured or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment at the Real Estate or into or from any building, structure, pipeline or other facility at the Real Estateunsecured, or from violation of otherwise. Without limiting the foregoing, Buyer does not assume (i) any law relating liability for Taxes (as hereinafter defined) payable for any periods prior to and including the Closing Date, (ii) any long term or bank debt, (iii) except and to the foregoingextent reflected on the Closing Balance Sheet (as hereinafter defined), any liability or obligation to any employee, director, officer or Stockholders, including without limitation, any CERCLA liability in connection with any Employee Benefit Plan (as hereinafter defined), (iv) any liability or similar liability under obligation for brokerage commissions, finders' fees or professional services of any federal or state law or regulation, except to kind incurred in connection with the extent Buyer has given written notice negotiation and execution of a claim for indemnification pursuant to Sections 7.3 this Agreement and 7.4 hereof prior to the expiration consummation of the claims period set forth transactions contemplated hereby, and (v) any liability or obligation arising as a result of, or which existence constitutes, a breach of any of Seller's or Stockholders' representations or warranties contained in Section 7.3.2(a) or this Agreement.
(b) (Buyer hereby assumes only the following liabilities and if Buyer has given written notice prior to the expiration obligations of such claims period, to the extent that such claim is not entitled to indemnification under Sections 7.3 and 7.4) (the foregoing, the "Pre-Existing Conditions");Seller:
(ei) liabilities and obligations arising from and after the Closing Date under the Assumed Contracts,
(ii) all liabilities and obligations of Seller related to unperformed service obligations, easement and right-of-way relocation obligations, and construction work in progress, and all engineering and construction required to complete scheduled construction and other capital projects for the Business, in each case relating to the Business and outstanding on or arising after the Closing Date except that Buyer shall not assume any liabilities or obligations for any breach or default by, or payment obligations of, Seller under such Contracts and Permits occurring or arising or accruing on or prior to the Closing Date;
(f) liability for accrued but unused vacation pay for the Transferred Employees to the extent provided in Section 5.9.2;
(g) any liability, obligation or responsibility relating to customer deposits held by Seller specifically reflected on the Closing Date and relating to the Business; Balance Sheet, and
(hiii) all other liabilities and obligations imposed listed on Buyer by any PUC in connection with the operation of the Business or the ownership of the Acquired Assets, including with respect to any liability of the types that appear as "Accrued Liabilities" and "Non-Current Liabilities" on the financial statements of Seller.
2.3.2 Any liabilities or obligations which are assumed by Buyer pursuant to Section 2.3.1 above are hereinafter referred to as the "Assumed Liabilities." At the Closing, Parent shall cause Buyer to execute and deliver to Seller an assumption agreement, in substantially the form of the Assumption Agreement attached hereto as Exhibit A (the "Assumption Agreement"), pursuant to which Buyer shall assume the Assumed Liabilities. Each of Parent and Buyer hereby irrevocably and unconditionally waives and releases the Seller Parties from all Assumed Liabilities and all liabilities or obligations exclusively relating to the Business or the Acquired Assets to the extent arising from events or occurrences after the Closing or to the extent otherwise relating to the period after the Closing, including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and SellerSchedule 3(b)(iii).
2.3.3 Buyer shall not assume any liabilities, commitments or obligations (contingent or absolute and whether or not determinable as of the Closing) of any of the Seller Parties or any of their Affiliates except for the Assumed Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by the Seller Parties, (the "Retained Liabilities"). Each of the Seller Parties hereby irrevocably and unconditionally waives and releases Buyer from all Retained Liabilities including any liabilities created or which arise by statute or common law, including CERCLA (it being understood that this shall not constitute a waiver and release of any claims arising out of the contractual relationships and indemnification arrangements between Buyer and Seller). Without limitation to the foregoing, all of the following shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(a) any product liability, toxic tort or similar claim for injury to person or property, regardless of when made or asserted, to the extent that it arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by any of the Seller Parties or any of their Affiliates prior to Closing, or alleged to have been made by any of such Persons, or to the extent that it is imposed or asserted to be imposed by operation of law, in connection with any service performed or product distributed or sold by or on behalf of any of the Seller Parties or any of their Affiliates prior to Closing, including any claim referred to above in this Section 2.3.3(a) relating to water quality standards, any claim relating to any product delivered in connection with the performance of services provided by Seller and any claim seeking recovery for consequential damages, lost revenue or income;
(b) all refund obligations relating to the advances existing on the Closing Date for construction of facilities relating to the Business;
(c) except to the extent set forth in Section 2.9, any federal, state, foreign or local income or other Tax payable with respect to the business, assets, properties or operations of any of the Seller Parties or any member of any affiliated group of which any of them is a member.
(d) any liability or obligation associated with or in connection with any common plant assets of Seller (other than the liabilities and obligations exclusively related to any common plant assets included among the Acquired Assets);
(e) except as provided in Section 2.3.1 above, any liability or obligation with respect to compensation or employee benefits of any nature owed to any employees, agents or independent contractors of any of the Seller Parties or any of their Affiliates, whether or not employed by Buyer after the Closing, that arises out of or relates to events or conditions to the extent occurring before the Closing Date;
(f) except to the extent set forth in Section 2.3.1(d), any liability, obligation or responsibility of any of the Seller Parties, or any of their Affiliates or predecessors, whether based on statutory or common law, but only as any such law is interpreted, amended and Ohio in effect on the Closing Date, known or unknown, contingent or actual, relating to or arising from pollution, contamination or protection of the environment, human health or safety or natural resources or relating to or arising from the presence or Release or threat of Release of Hazardous Substances into the environment or into or from any building, structure, pipeline or other facility or relating to or arising from the generation, use, storage, treatment, disposal, transport or other handling of Hazardous Substances or sale or product containing Hazardous Substances from violation of any law relating to the foregoing (but only as such law is interpreted, amended and in effect on the Closing Date) including without limitation, any (A) CERCLA or similar liability under any federal or state law or regulation as interpreted, amended and in effect on the Closing Date or (B) any such liability associated with businesses or assets of the Seller Parties other than the Business or the Acquired Assets;
(g) liabilities and obligations relating to the Business to the extent arising prior to Closing (unless otherwise constituting Assumed Liabilities) arising by operation of law under any common law or statutory doctrine (including successor liability or de facto merger);
(h) any obligation or liability arising under any contract, commitment, instrument or agreement (1) except for Buyer's IDRB Obligations and subject to the penultimate sentence of Section 2.4, that is not transferred to Buyer as part of the Acquired Assets, or (2) that relates to any breach or default (or to the extent that it relates to an event which would, with the passing of time or the giving of notice, or both, constitute a default) under any Contract, instrument or agreement or to any services to be provided by Seller under any such Contract, instrument or agreement to the extent that such services were performed or were required to have been performed on or prior to the Closing Date;
(i) any liability or obligation in respect of the Excluded Assets;
(j) any liability or obligation of any of the Seller Parties or any of their Affiliates existing as a result of any act, failure to act or other state of facts or occurrence which constitutes a breach or violation of any of Seller's representations, warranties, covenants or agreements contained in this Agreement, except to the extent set forth in Section 7.4; or
(k) except for the Assumed Liabilities as specifically and expressly set forth herein, any liability to the extent arising out of or relating to the ownership or operation of the Acquired Assets or the Business prior to the Closing Date (including any predecessor operations), any claims, obligations or litigation to the extent arising out of or relating to events or conditions occurring before the Closing Date, and any liability associated with any business other than the Business.
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