Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser agrees to cause the Designated Purchasers to assume, pay, perform and discharge when due, all liabilities or obligations listed in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), 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 Closing Date Balance Sheet, other than any such liabilities that are Excluded Liabilities; (ii) all liabilities and obligations of Sellers arising under or pursuant to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-how; (iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only to the extent such liabilities and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this Agreement; (iv) the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") of the Contingency Reserves reflected or shown on the Closing Date Balance Sheet; and (v) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis. (b) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following: (i) all liabilities and obligations which are attributable to any of the Excluded Assets, or associated with the realization of the benefits of any of the Excluded Assets; (ii) the Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet; (iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14; (iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement; (v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events; (vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amount; (vii) all liabilities and obligations to the extent arising from the Excluded Joint Ventures; (viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; and (ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basis. (c) Notwithstanding anything to the contrary in this Section 2.03, to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability under Section 2.03(b).
Appears in 3 contracts
Samples: Asset Purchase Agreement (Cincinnati Milacron Inc /De/), Asset Purchase Agreement (Rhi Holdings Inc), Asset Purchase Agreement (Fairchild Corp)
Assumption of Certain Liabilities. (a) Upon the terms On and subject to the terms and conditions of this Agreement, at as of the Closing, Purchaser agrees shall assume and agree to cause the Designated Purchasers to assume, pay, perform pay and discharge when duedue solely the following Liabilities of Seller, all liabilities or obligations listed in this Section 2.03to the extent that they are not Excluded Liabilities (collectively, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), whether arising before or after the Closing and whether known or unknown, fixed or contingent (the "“Assumed Liabilities"”):
(i) all liabilities set forth on Liabilities of Seller under Included Contracts that arise and accrue after the Closing Date Balance SheetClosing, other than any such liabilities that relate to periods following the Closing, and are Excluded Liabilitiesto be observed, paid, discharged, and performed following the Closing;
(ii) all liabilities and Liabilities or obligations arising out of Sellers any Legal Proceeding related to or arising under out of the Business or pursuant the Purchased Assets, in each case, solely to the Acquired Contractsextent arising out of or in connection with acts, omissions or circumstances occurring at or after the PermitsClosing (but in no event arising out of or in connection with acts, omissions or circumstances occurring prior to the Acquired Intellectual Property and the Acquired Know-howClosing);
(iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only Liabilities of Seller to the extent that such liabilities and obligations Liabilities or a reserve therefore are expressly assumed by any Designated Purchaser pursuant to Article VII included in the calculation of this AgreementFinal Closing Net Working Capital;
(iv) Seller’s liability for the Specified Contingent Liabilities Retention Payments, pursuant to agreements entered into pursuant to Section 4.13(b) (which, for purposes of clarity, shall not be treated as a “current liability” in an amount equal to (and no amounts in excess of) Closing Working Capital; it being the aggregate amount (the "Contingent Reserve Amount") intent of the Contingency Reserves reflected or shown on Parties that such expense be borne by Purchaser);
(v) those Liabilities with respect to each Transferred Employee that are expressly assumed by Purchaser pursuant to Section 4.13, and all Liabilities with respect to such Transferred Employees arising after the Closing Date Balance Sheet(but not any Liabilities described in Section 1.1(d)(viii)); and
(vvi) all other liabilities and obligations of Parent and Sellers Liabilities solely to the extent relating to or arising out of the Purchased Assets or the Business arising out of or in connection with any act, omission or circumstance occurring at any time after the Closing (but in no event arising out of or in connection with any act, omission or circumstance occurring prior to the Closing). For the avoidance of doubt, to the extent the existence of any of the Liabilities set forth above constitutes any actual or alleged Breach of any representation, warranty or covenant contained in the Transaction Documents or any other than the Excluded Liabilitiesagreement or document delivered in connection therewith, Purchaser’s obligations under this Section 1.1(c) shall continue in full force and effect; provided, however, that with respect nothing herein shall limit any right of the Purchaser Indemnitees to (i) any such other liability or obligation not relating exclusively right to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis.
(b) Notwithstanding anything herein to the contrary indemnification therefore set forth in this Agreement or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor Transaction Document or (ii) pursue any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
(i) all liabilities and obligations which are attributable remedy available to any of the Excluded Assets, or associated with the realization of the benefits of any of the Excluded Assets;
(ii) the Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14;
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee Purchaser Indemnitees pursuant hereto or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events;
(vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amount;
(vii) all liabilities and obligations to the extent arising from the Excluded Joint Ventures;
(viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; and
(ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basisTransaction Document.
(c) Notwithstanding anything to the contrary in this Section 2.03, to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability under Section 2.03(b).
Appears in 3 contracts
Samples: Asset Purchase Agreement (Ranger Energy Services, Inc.), Asset Purchase Agreement (Ranger Energy Services, Inc.), Asset Purchase Agreement (Ranger Energy Services, Inc.)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser agrees to cause the Designated Purchasers to assume, Hexcel shall assume and shall pay, perform and discharge or cause to be paid, performed and discharged when due, all liabilities or obligations listed in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement)whatsoever, whether arising before or after the Closing and whether known or unknown, fixed or contingent (including any identifiable and severable portions of the foregoing (financial liabilities and obligations being deemed severable for purposes of this clause)), other than Excluded Liabilities, relating exclusively or primarily to or arising exclusively or primarily out of the Transferred Business or the Acquired Assets, but, in the case of obligations or liabilities that are severable, only to the extent such liabilities or obligations relate to or arise out of the Transferred Business or the Acquired Assets (the "Assumed Liabilities"):). It is understood and agreed that the following liabilities and obligations shall be deemed to relate exclusively or primarily to or arise exclusively or primarily out of the Transferred Business or the Acquired Assets:
(i) all obligations and liabilities set forth on of Ciba or its Subsidiaries under the Closing Date Balance Sheet, other than any such liabilities that are Excluded LiabilitiesAcquired Contracts;
(ii) all liabilities and obligations of Sellers arising under or pursuant to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-howAccounts Payable;
(iii) all obligations and liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating respect to any and all products sold or serviced (whether or not under warranty) by the Transferred EmployeeBusiness at any time, but only including obligations and liabilities for and with respect to any refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability, products liability (including with respect to personal injury caused by the extent such liabilities use or operation of products sold or serviced by the Transferred Business) and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this Agreementother claims;
(iv) except as specifically provided otherwise in the Specified Contingent Liabilities UK Agreements, any other Ancillary Agreement or a Danutec Agreement, all obligations and liabilities arising as a result of Ciba or any of its past or present Subsidiaries, or any predecessor in an amount equal interest thereof, being the owner or occupant of, or the operator of the activities conducted at, the Scheduled Real Property sites at any time, including all obligations and liabilities arising out of any Environmental Law (including those arising under CERCLA or from off-site waste disposal from the Scheduled Real Property sites) and all other obligations or liabilities relating to personal injury or property damage involving the Scheduled Real Property sites;
(v) except as otherwise provided in the Employment Matters Agreement or any other Ancillary Agreement, all obligations and no amounts in excess ofliabilities relating to employees of the Transferred Business;
(vi) the aggregate Other Tax Liabilities and, to the extent of the amount provided or reserved for or accrued in the balance sheet of the Transferred Business as of the Closing Date, the Income Tax Liabilities of the Divested Subsidiaries (other than Danutec, if the Danutec Equity is not delivered to Hexcel at Closing) (collectively, the "Contingent Reserve AmountAssumed Tax Liabilities") of the Contingency Reserves reflected or shown on the Closing Date Balance Sheet); and
(vvii) except as provided in any Ancillary Agreement or in Section 1.03(c), all other liabilities and obligations of Parent and Sellers to the extent relating to the Business Divested Subsidiaries (other than Danutec, if the Excluded Liabilities; providedDanutec Equity is not delivered to Hexcel at Closing) of any kind, howeverwhether arising before or after the Closing and whether known or unknown, that with respect to any such other liability fixed or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basiscontingent.
(b) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser Hexcel shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other have no liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence hereunder relating to or arising hereafter. All such other out of the following liabilities and obligations ahll be retained by of Ciba and remain obligations of Parent or Sellers (or its Subsidiaries, including, if applicable, any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as of the Divested Subsidiaries (the "Excluded Liabilities"). Without limiting , all of which are excluded from the generality Assumed Liabilities, shall not be assumed by Hexcel hereunder and shall remain the liabilities and obligations of Ciba and its Subsidiaries (other than the foregoing, the Excluded Liabilities shall include the following:Divested Subsidiaries):
(i) all liabilities and obligations which are attributable any obligation or liability relating to or arising out of any of the Excluded Assets to the extent such obligation or liability relates to the Excluded Assets, or associated with the realization of the benefits of any of the Excluded Assets;
(ii) the Income Tax Liabilities other than those described in Section 1.03(a)(vi) (the "Excluded Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet");
(iii) any obligation or liability involving a claim for products liability relating to or arising out of products of the Existing Seller IndebtednessTransferred Business sold prior to the Closing to Ciba or its Subsidiaries, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess products resold by Ciba or its Subsidiaries to third parties (including as a component of $100,000 in the aggregate and other than as set forth in Schedule 5.14another product);
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health obligation or safety matters (other than worker's compensation) and any other employee benefit plans, programs liability involving a claim for damages caused by asbestos included in or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed used in the manufacture of products of the Transferred Business and all liabilities and obligations relating that relates to or arising from the employment arises out of products sold or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except manufactured prior to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this AgreementClosing;
(v) all liabilities and obligations arising from worker's compensation claims any obligation or liability relating to preor arising out of an event occurring prior to the Closing Date for which Ciba or any of its Subsidiaries has coverage under the following (i) AAV--Policy #0015P-5883, (ii) Lloyd's of London Policy #576-Closing eventsA7A1018, (iii) Winterthur Policy #3095089, (iv) USAIG Policy #51HL2-1224 and (v) CIGNA--Policy #ATP014520;
(vi) all Specified Contingent Liabilities liabilities and obligations for which Ciba or CGC has expressly assumed or retained responsibility pursuant to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amountthis Agreement or any Ancillary Agreement;
(vii) all liabilities and obligations relating to the extent arising from Satellite Personnel (other than as provided in the Excluded Joint Ventures;Distribution Agreement); and
(viii) all any obligations or liabilities and relating to or arising out of any employee benefit plan of Ciba and/or its Subsidiaries (other than the Divested Subsidiaries) except such obligations covered, but only or liabilities as are being transferred pursuant to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities Employment Matters Agreement or any of their respective Affiliates; and
(ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basisAncillary Agreement.
(c) Notwithstanding anything herein (including Section 1.03(a)(vii)) or in any agreement relating to the contrary in this Section 2.03, "hive-down" of assets and liabilities (including agreements relating to the extent a liability is included in Duxford property transfer) by Ciba-Geigy PLC ("Ciba UK") to Composite Materials Limited ("CML") (the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05"Hive Down Agreements"), such liability shall (in an amount equal to (and no amount in excess ofi) the amount included principles set forth in such calculationSection 1.03(a) be deemed and (b) as to be an the allocation of particular liabilities among Assumed Liability, whether or not such liability is listed as an Liabilities and Excluded Liability under Section 2.03(b)Liabilities shall govern the allocation of liabilities between Ciba UK on the one hand and CML on the other hand and (ii) any and all covenants contained herein that provide for the taking of actions by the parties which are intended to give effect to the allocation of liabilities among Assumed Liabilities and Excluded Liabilities shall apply to the allocation of liabilities between Ciba UK on the one hand and CML on the other hand.
Appears in 3 contracts
Samples: Strategic Alliance Agreement (Hexcel Corp /De/), Strategic Alliance Agreement (Ciba Geigy LTD), Strategic Alliance Agreement (Ciba Geigy Corp)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at HoldCo shall assume, effective as of the Closing, Purchaser agrees to cause and from and after the Designated Purchasers to assumeClosing, HoldCo shall pay, perform and discharge when due, all liabilities or obligations listed in this Section 2.03and indemnify Ashland and its affiliates and each of their respective Representatives against, and only such liabilities or defend and hold them harmless from, all of the following liabilities, obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement)and commitments of any nature, whether arising before or after the Closing and whether known or unknown, fixed express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise and whether due or to become due, of Ashland (collectively, the "Assumed Liabilities"):), other than any Retained Liabilities:
(i) all liabilities set forth on liabilities, obligations and commitments of Ashland under the Closing Date Balance SheetAssigned Contracts to the extent such liabilities, other than any such liabilities that are Excluded Liabilitiesobligations and commitments relate to the period from and after the Closing;
(ii) all liabilities liabilities, obligations and obligations commitments of Sellers arising under or pursuant Ashland to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-howextent expressly assumed by HoldCo in accordance with Section 4.03;
(iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only Environmental Liabilities (as defined in Section 6.01(b)) of Ashland to the extent such liabilities they arise out of both (A) the operation of any of the Transferred Assets or the operation or conduct of the VIOC Centers and obligations are expressly assumed by any Designated Purchaser pursuant (B) either (x) events occurring or circumstances or conditions arising from and after the Closing, or (y) events occurring or circumstances or conditions arising prior to Article VII the Closing, but only, in the case of this Agreement;
clause (ivB)(y), to the extent set forth in the table below (provided, however, that to the extent the same Environmental Liability is described in both clauses (x) the Specified Contingent Liabilities in an amount equal to and (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount"y) of this Section 1.03(a)(iv)(B), such Environmental Liability will be apportioned between HoldCo and Ashland in proportion to the Contingency Reserves reflected extent to which the activities of each party contributed to the cause of the Environmental Liability, taking into account all pertinent factors, including the length of ownership by HoldCo and Ashland of the relevant property during the time of the event or shown occurrence, or the development of the circumstance or condition, giving rise to the Environmental Liability and the use made of such property by the parties hereto): ------------------------------------------------------------------------------ If written notice (in Percentage of Environmental reasonable detail) of such Liability described in clause Environmental Liability is (B)(y) above that will be an first received by Ashland Assumed Liability: during the twelve-month period ending on the following anniversary of the Closing Date Balance Sheet; and
(v) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any Environmental Liability arising from any matter referred to in Section 3.11(b) of the VIOC Centers Disclosure Letter, Ashland shall be deemed to have received written notice (in reasonable detail) of such other liability or obligation not relating exclusively Environmental Liability prior to the Business, first anniversary of the Designated Purchasers shall only assume that portion of Closing Date): ------------------------------------------------------------------------------ First through Fifth 0% ------------------------------------------------------------------------------ Sixth 20% ------------------------------------------------------------------------------ Seventh 40% ------------------------------------------------------------------------------ Eighth 60% ------------------------------------------------------------------------------ Ninth 80% ------------------------------------------------------------------------------ If such liability notice is not 100% received by Ashland on or obligation that is allocable prior to the Business on a pro rata basisninth anniversary of the Closing Date ------------------------------------------------------------------------------ ; and
(iv) all other liabilities, obligations and commitments of Ashland to the extent such liabilities, obligations and commitments relate to or arise out of the operation of any of the Transferred Assets or the operation or conduct of the VIOC Centers, in each case from and after the Closing.
(b) Notwithstanding anything herein to the contrary Section 1.03(a), or any other writing provision of this Agreement, HoldCo shall not assume, and Ashland shall pay, perform and discharge when due, and indemnify HoldCo and its affiliates and each of their respective Representatives against, and defend and hold them harmless from, any liability, obligation or commitment of Ashland or the VIOC Centers of any nature, whether known or unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise, and whether due or to the contrarybecome due, Purchaser shall cause the Designated Purchasers to assume only except the Assumed LiabilitiesLiabilities (collectively, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Retained Liabilities"). Without limiting the generality of the foregoing, the Excluded Retained Liabilities shall include the followinginclude:
(i) all liabilities and obligations which are attributable any liability, obligation or commitment of Ashland to the extent arising out of the operation or conduct by Ashland or any of its affiliates of any business other than the Excluded AssetsVIOC Centers;
(ii) all accounts payable of Ashland to the extent arising out of the operation or conduct of the VIOC Centers prior to the Closing;
(iii) any liability, obligation or commitment of Ashland (A) to the extent arising out of any actual or alleged breach by Ashland of, or nonperformance by Ashland under, any Contract (including any Assigned Contract) prior to the Closing or (B) under any Assigned Contract to the extent such liability, obligation or commitment relates to the period prior to the Closing;
(iv) any liability, obligation or commitment of Ashland arising out of any warranty claim, suit, action, proceeding, investigation, governmental action or other cause of action or claim associated with or relating to the realization VIOC Centers or the Transferred Assets (a "Claim") to the extent arising out of actions, omissions or conditions occurring or existing on or prior to the Closing Date;
(v) any liability, obligation or commitment of Ashland to the extent such liability, obligation or commitment relates to, or arises out of, any Excluded Asset, or arises out of the benefits ownership or operation by Ashland of any of the Excluded Assets;
(iivi) the Tax Liabilitiesexcept as otherwise expressly provided in Section 4.03, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount any liability, obligation or commitment of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14;
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or Ashland arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events;
(vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve AmountVIOC Benefit Plan;
(vii) all liabilities and obligations any liability, obligation or commitment of Ashland to the extent arising from the Excluded Joint Venturesany of its divisions, subsidiaries or affiliates;
(viii) all liabilities and obligations coveredany liability, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities obligation or commitment of Ashland or any of their respective Affiliatesits affiliates under any of the Transaction Agreements or any of the Ancillary Agreements; and
(ix) all other liabilities and obligations any Environmental Liability arising out of Parent and Sellers events occurring or circumstances or conditions arising prior to the extent not relating Closing except for Environmental Liabilities that are Assumed Liabilities pursuant to the BusinessSection 1.03(a)(iii); provided, however, an Environmental Liability that otherwise would be considered a Retained Liability under this Section 1.03(b)(ix) shall be an Assumed Liability and shall not be a Retained Liability if the event, circumstance or condition that gave rise to such Environmental Liability (A) is the result of a change in use after the Closing Date of any of the Premises to a use other than a commercial use of such Premises similar to its current use, or (B) was discovered as a result of a Phase II or other intrusive sampling, testing or investigation conducted after the Closing Date (collectively, "Environmental Tests") except for Environmental Tests undertaken (x) to respond to, investigate, or otherwise remediate environmental conditions or contamination that are on the Closing Date in violation of the standards imposed by applicable Environmental Laws (as defined in Section 3.11(b)), (y) as required by Environmental Laws, pursuant to the terms of any lease with respect to any such of the Premises or in response to an inquiry, request, claim or demand by a Governmental Entity or as a reasonable response to any claim or demand by any other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation person that is not allocable an affiliate of HoldCo or (z) in connection with a condition first discovered as a result of construction activities, excluding construction activities relating to the Business installation of underground storage tanks, commencing after the Closing Date at, on or beneath any of the Premises, so long as such construction activities are undertaken in connection with a pro rata basiscommercial use of such Premises similar to its current use.
(c) Notwithstanding anything HoldCo shall acquire the Transferred Assets free and clear of all liabilities, obligations and commitments of Ashland, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens (as defined in Section 6.01(b)) and other than any Lien pursuant to the contrary in this Section 2.03, to HoldCo Borrowing arrangements or arising from actions or inactions of any of the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to Marathon Parties or their affiliates (and no amount in excess of) not of any of the amount included in such calculation) be deemed to be an Assumed Liability, whether Ashland Parties or not such liability is listed as an Excluded Liability under Section 2.03(btheir affiliates).
Appears in 2 contracts
Samples: Assignment and Assumption Agreement (Ashland Inc), Assignment and Assumption Agreement (Ashland Inc)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at HoldCo shall assume, effective as of the Closing, Purchaser agrees to cause and from and after the Designated Purchasers to assumeClosing, HoldCo shall pay, perform and discharge when due, all liabilities or obligations listed in this Section 2.03and indemnify Ashland and its affiliates and each of their respective Representatives against, and only such liabilities or defend and hold them harmless from, all of the following liabilities, obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement)and commitments of any nature, whether arising before or after the Closing and whether known or unknown, fixed express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise and whether due or to become due, of Ashland (collectively, the "“Assumed Liabilities"):”), other than any Retained Liabilities:
(i) all liabilities set forth on liabilities, obligations and commitments of Ashland under the Closing Date Balance SheetAssigned Contracts to the extent such liabilities, other than any such liabilities that are Excluded Liabilitiesobligations and commitments relate to the period from and after the Closing;
(ii) all liabilities liabilities, obligations and obligations commitments of Sellers arising under or pursuant Ashland to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-howextent expressly assumed by HoldCo in accordance with Section 4.03;
(iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only Environmental Liabilities (as defined in Section 6.01(b)) of Ashland to the extent such liabilities they arise out of both (A) the operation of any of the Transferred Assets or the operation or conduct of the VIOC Centers and obligations are expressly assumed by any Designated Purchaser pursuant (B) either (x) events occurring or circumstances or conditions arising from and after the Closing, or (y) events occurring or circumstances or conditions arising prior to Article VII the Closing, but only, in the case of this Agreement;
clause (ivB)(y), to the extent set forth in the table below (provided, however, that to the extent the same Environmental Liability is described in both clauses (x) the Specified Contingent Liabilities in an amount equal to and (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount"y) of this Section 1.03(a)(iv)(B), such Environmental Liability will be apportioned between HoldCo and Ashland in proportion to the Contingency Reserves reflected extent to which the activities of each party contributed to the cause of the Environmental Liability, taking into account all pertinent factors, including the length of ownership by HoldCo and Ashland of the relevant property during the time of the event or shown occurrence, or the development of the circumstance or condition, giving rise to the Environmental Liability and the use made of such property by the parties hereto): If written notice (in reasonable detail) of such Environmental Liability is first received by Ashland during the twelve-month period ending on the following anniversary of the Closing Date Balance Sheet; and
(v) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any Environmental Liability arising from any matter referred to in Section 3.11(b) of the VIOC Centers Disclosure Letter, Ashland shall be deemed to have received written notice (in reasonable detail) of such other liability or obligation not relating exclusively Environmental Liability prior to the Business, first anniversary of the Designated Purchasers shall only assume Closing Date): Percentage of Environmental Liability described in clause (B)(y) above that portion of will be an Assumed Liability: First through Fifth 0% Sixth 20% Seventh 40% Eighth 60% Ninth 80% If such liability notice is not received by Ashland on or obligation that is allocable prior to the Business on a pro rata basisninth anniversary of the Closing Date 100% ; and
(iv) all other liabilities, obligations and commitments of Ashland to the extent such liabilities, obligations and commitments relate to or arise out of the operation of any of the Transferred Assets or the operation or conduct of the VIOC Centers, in each case from and after the Closing.
(b) Notwithstanding anything herein to the contrary Section 1.03(a), or any other writing provision of this Agreement, HoldCo shall not assume, and Ashland shall pay, perform and discharge when due, and indemnify HoldCo and its affiliates and each of their respective Representatives against, and defend and hold them harmless from, any liability, obligation or commitment of Ashland or the VIOC Centers of any nature, whether known or unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise, and whether due or to the contrarybecome due, Purchaser shall cause the Designated Purchasers to assume only except the Assumed Liabilities (collectively, the “Retained Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"”). Without limiting the generality of the foregoing, the Excluded Retained Liabilities shall include the followinginclude:
(i) all liabilities and obligations which are attributable any liability, obligation or commitment of Ashland to the extent arising out of the operation or conduct by Ashland or any of its affiliates of any business other than the Excluded AssetsVIOC Centers;
(ii) all accounts payable of Ashland to the extent arising out of the operation or conduct of the VIOC Centers prior to the Closing;
(iii) any liability, obligation or commitment of Ashland (A) to the extent arising out of any actual or alleged breach by Ashland of, or nonperformance by Ashland under, any Contract (including any Assigned Contract) prior to the Closing or (B) under any Assigned Contract to the extent such liability, obligation or commitment relates to the period prior to the Closing;
(iv) any liability, obligation or commitment of Ashland arising out of any warranty claim, suit, action, proceeding, investigation, governmental action or other cause of action or claim associated with or relating to the realization VIOC Centers or the Transferred Assets (a “Claim”) to the extent arising out of actions, omissions or conditions occurring or existing on or prior to the Closing Date;
(v) any liability, obligation or commitment of Ashland to the extent such liability, obligation or commitment relates to, or arises out of, any Excluded Asset, or arises out of the benefits ownership or operation by Ashland of any of the Excluded Assets;
(iivi) the Tax Liabilitiesexcept as otherwise expressly provided in Section 4.03, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount any liability, obligation or commitment of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14;
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or Ashland arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events;
(vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve AmountVIOC Benefit Plan;
(vii) all liabilities and obligations any liability, obligation or commitment of Ashland to the extent arising from the Excluded Joint Venturesany of its divisions, subsidiaries or affiliates;
(viii) all liabilities and obligations coveredany liability, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities obligation or commitment of Ashland or any of their respective Affiliatesits affiliates under any of the Transaction Agreements or any of the Ancillary Agreements; and
(ix) all other liabilities and obligations any Environmental Liability arising out of Parent and Sellers events occurring or circumstances or conditions arising prior to the extent not relating Closing except for Environmental Liabilities that are Assumed Liabilities pursuant to the BusinessSection 1.03(a)(iii); provided, however, an Environmental Liability that otherwise would be considered a Retained Liability under this Section 1.03(b)(ix) shall be an Assumed Liability and shall not be a Retained Liability if the event, circumstance or condition that gave rise to such Environmental Liability (A) is the result of a change in use after the Closing Date of any of the Premises to a use other than a commercial use of such Premises similar to its current use, or (B) was discovered as a result of a Phase II or other intrusive sampling, testing or investigation conducted after the Closing Date (collectively, “Environmental Tests”) except for Environmental Tests undertaken (x) to respond to, investigate, or otherwise remediate environmental conditions or contamination that are on the Closing Date in violation of the standards imposed by applicable Environmental Laws (as defined in Section 3.11(b)), (y) as required by Environmental Laws, pursuant to the terms of any lease with respect to any such of the Premises or in response to an inquiry, request, claim or demand by a Governmental Entity or as a reasonable response to any claim or demand by any other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation person that is not allocable an affiliate of HoldCo or (z) in connection with a condition first discovered as a result of construction activities, excluding construction activities relating to the Business installation of underground storage tanks, commencing after the Closing Date at, on or beneath any of the Premises, so long as such construction activities are undertaken in connection with a pro rata basiscommercial use of such Premises similar to its current use.
(c) Notwithstanding anything HoldCo shall acquire the Transferred Assets free and clear of all liabilities, obligations and commitments of Ashland, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens (as defined in Section 6.01(b)) and other than any Lien pursuant to the contrary in this Section 2.03, to HoldCo Borrowing arrangements or arising from actions or inactions of any of the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to Marathon Parties or their affiliates (and no amount in excess of) not of any of the amount included in such calculation) be deemed to be an Assumed Liability, whether Ashland Parties or not such liability is listed as an Excluded Liability under Section 2.03(btheir affiliates).
Appears in 2 contracts
Samples: Assignment and Assumption Agreement (Marathon Oil Corp), Assignment and Assumption Agreement (Marathon Oil Corp)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at Purchaser shall assume, effective as of the Initial Closing, and from and after the Initial Closing, Purchaser agrees shall pay, perform and discharge when due, all liabilities, obligations and commitments of Seller and any Seller Sub of any nature whatsoever, whether known or unknown, asserted or unasserted, whether due or to cause become due ("liabilities") Related to the Designated Purchasers Businesses, other than any European Assumed Liabilities and any Excluded Liabilities (the "US/MOW Assumed Liabilities"), including:
(i) all liabilities of Seller or any Seller Sub under the US/MOW Assigned Contracts;
(ii) all accounts payable of Seller or any Seller Sub to the extent Related to the US/MOW Businesses;
(iii) all liabilities in respect of any and all products, goods or services sold by the US/MOW Businesses at any time, including liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and warranty, merchantability and other claims;
(iv) all liabilities to the extent arising as a result of at any time being the owner or occupant of, or the operator of the activities conducted at, the US/MOW Premises included in the US/MOW Acquired Assets or any other real property owned or leased at any time by Seller or any Seller Sub for use primarily in the US/MOW Businesses, including all liabilities relating to personal injury, property damage, the environment and on-site or off-site waste disposal;
(v) all liabilities relating to the employment or termination of employment of any Non-European Transferred Employee or any former employee of Cemax- Icon at any time, including any payroll or employment taxes, unused vacation time and liabilities under corporate credit cards issued to any Non-European Transferred Employee;
(vi) all liabilities for Taxes (A) attributable to the US/MOW Acquired Assets (other than Excluded Taxes), (B) of Cemax-Icon for any taxable period (other than Excluded Taxes) and (C) attributable to a US/MOW Purchaser Tax Act;
(vii) all liabilities in respect of Proceedings, pending or threatened, whether or not presently asserted, that are Related to the US/MOW Businesses; and
(viii) (x) all liabilities under any Benefit Plan sponsored by Cemax-Icon and (y) any Non-European Benefit Plan liability that becomes the obligation of Purchaser under Section 6.09.
(b) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective in each European Territory upon the consummation of the European Closing with respect to such European Territory, and from and after the European Closing with respect to such European Territory, Purchaser shall pay, perform and discharge when due, all liabilities or obligations listed Related to the European Businesses conducted in this Section 2.03, and only from such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), whether arising before or after the Closing and whether known or unknown, fixed or contingent European Territory other than any Excluded Liabilities (the "European Assumed Liabilities"):), including:
(i) all liabilities set forth on of Seller or any Seller Sub under the Closing Date Balance Sheet, other than any such liabilities that are Excluded LiabilitiesEuropean Assigned Contracts;
(ii) all liabilities and obligations accounts payable of Sellers arising under Seller or pursuant any Seller Sub to the Acquired Contracts, extent Related to the Permits, European Businesses (including any liabilities under the Acquired Intellectual Property and the Acquired Know-howWhite City Supply Agreement);
(iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only to the extent such liabilities and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this Agreement;
(iv) the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") of the Contingency Reserves reflected or shown on the Closing Date Balance Sheet; and
(v) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis.
(b) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
(i) all liabilities and obligations which are attributable to any of the Excluded Assets, or associated with the realization of the benefits of any of and all products, goods or services sold by the Excluded Assets;
(ii) the Tax LiabilitiesEuropean Businesses at any time, other than the Assumed Tax Liabilities in an amount equal to (including liabilities for refunds, adjustments, allowances, repairs, exchanges, returns and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtednesswarranty, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate merchantability and other than as set forth in Schedule 5.14claims;
(iv) all liabilities and obligations relating to compensation and the extent arising as a result of at any pensiontime being the owner or occupant of, deferred compensationor the operator of the activities conducted at, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee the European Premises included in the European Acquired Assets or any other employee real property owned or former employee employed leased at any time by Seller or any Seller Sub for use primarily in the Business and European Businesses, including all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (includingpersonal injury, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellersproperty damage, the Purchased Entities environment and on-site or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreementoff-site waste disposal;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events(A) the employment or termination of employment of any European Transferred Employee at any time, including any payroll or employment taxes, unused vacation time and liabilities under corporate credit cards issued to any European Transferred Employee and (B) all liabilities relating to the employment or termination of employment of any European Eligible Employee who terminates employment for any reason after the Initial Closing;
(vi) all Specified Contingent Liabilities liabilities for Taxes (A) attributable to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve AmountEuropean Acquired Assets (other than Excluded Taxes) and (B) attributable to a European Purchaser Tax Act;
(vii) all liabilities and obligations in respect of Proceedings, pending or threatened, whether or not presently asserted, that are Related to the extent arising from the Excluded Joint Ventures;European Businesses; and
(viii) all liabilities and obligations covered, but only to any European Benefit Plan liability that becomes the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any obligation of their respective Affiliates; and
(ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basis.
(c) Notwithstanding anything to the contrary in this Section 2.03, to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability Purchaser under Section 2.03(b)6.09.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms Closing, and subject to Seller’s indemnification obligation set forth in Section 14.1 above for the conditions of this Agreementperiod it remains in effect, at the Closing, Purchaser agrees to cause the Designated Purchasers to assume, Buyer shall assume and timely and fully pay, perform and discharge when dueotherwise discharge, without recourse to the Seller Indemnified Parties, all liabilities obligations and Liabilities, direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, arising under or with respect to the ownership or operation of the Assets and regardless of whether the same accrued or otherwise arose before, on or after the Effective Time, including, without limitation:
(a) the condition of the Properties on the date of Closing (including, without limitation, all obligations listed to properly plug and abandon, or replug and re-abandon, xxxxx located on the Properties, to restore the surface of the Properties and to comply with, or to bring the Properties into compliance with, Environmental Laws, including conducting any remediation activities which may be required on or otherwise in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreementconnection with activities on the Properties), regardless of whether arising such condition or the events giving rise to such condition arose or occurred before or after the Closing and whether known or unknownClosing, fixed or contingent (the "Assumed Liabilities"):
(i) all liabilities set forth on the Closing Date Balance Sheet, other than any such liabilities that are Excluded Liabilities;
(ii) all liabilities and obligations of Sellers arising under or pursuant to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-how;
(iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only to the extent such liabilities and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this Agreement;
(iv) the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") of the Contingency Reserves reflected or shown on the Closing Date Balance Sheet; and
(v) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis.
(b) Notwithstanding anything herein the proper payment of any rentals and royalties with respect to the contrary or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) Properties (all such liabilities and obligations not of the above items in this Section 14.2 being assumed being herein referred to as called the "Excluded Liabilities"“Assumed Obligations”). Without limiting the generality of the foregoingTHE FOREGOING ASSUMPTIONS AND INDEMNIFICATIONS SHALL APPLY WHETHER OR NOT SUCH DUTIES, the Excluded Liabilities shall include the following:
OBLIGATIONS OR LIABILITIES, OR SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF (i) all liabilities and obligations which are attributable to any of the Excluded AssetsNEGLIGENCE (INCLUDING SOLE NEGLIGENCE, or associated with the realization of the benefits of any of the Excluded Assets;
SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF ANY INDEMNIFIED PARTY, OR (ii) the Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14;
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events;
(vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amount;
(vii) all liabilities and obligations to the extent arising from the Excluded Joint Ventures;
(viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; and
(ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basisSTRICT LIABILITY.
(c) Notwithstanding anything to the contrary in this Section 2.03, to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability under Section 2.03(b).
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Plains Exploration & Production Co)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser agrees to cause the Designated Purchasers to assume, pay, perform and discharge when due, all liabilities or obligations listed whatsoever, other than Excluded Liabilities, that are primarily related to, arose primarily out of or in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement)connection with the Transferred Business, whether arising before or after the Closing and whether known or unknown, fixed or contingent (the "Assumed Liabilities"), including all of the liabilities and obligations listed below (each of which are deemed to relate primarily to the Transferred Business):
(i) all obligations and liabilities set forth on due to be performed or paid after the Closing Date Balance Sheet, other than any such liabilities that are Excluded Liabilitiesunder Acquired Contracts;
(ii) all liabilities and obligations of Sellers arising under or pursuant to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-how;[Intentionally omitted]
(iii) all obligations and liabilities of Seller of the type reflected on the line items of the Projected Balance Sheet except for obligations and liabilities which have been satisfied, cancelled or otherwise transferred in the ordinary course of business of the Division from the date hereof to the Closing Date;
(iv) all obligations or liabilities with respect to product liability claims (including claims for death, personal injury or property damage) with respect to products shipped or services provided by Purchaser after the Closing in connection with the Transferred Business, including any liability for incidental or consequential damages relating thereto;
(v) subject to the provisions of Section 8.3 all obligations and liabilities arising as a result of Seller, or any predecessor in interest thereof, being the owner or occupant of, or the operator of the activities conducted at, the Scheduled Real Property at any time, including all obligations and liabilities relating to employee benefit planspersonal injury, programs or arrangements property damage, the environment and waste disposal including off-site waste disposal;
(vi) all obligations and liabilities relating to the deferred holiday associated with or relating to any Transferred Employee, but only to the extent such liabilities and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this AgreementEmployees;
(ivvii) all obligations and liabilities with respect to all actions, suits, proceedings, disputes, claims or investigations that are primarily related to or arise primarily out of or in connection with the Specified Contingent Liabilities Transferred Business, the Acquired Assets or the Transferred Employees, at law, in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") of the Contingency Reserves reflected equity or shown on the Closing Date Balance Sheetotherwise; and
(vviii) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Real Property Tax Liabilities; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis.
(b) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other following liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers Seller (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities ) shall include the followingnot be assumed by Purchaser hereunder and shall not constitute Assumed Liabilities:
(i) all liabilities and obligations any obligation or liability which are is primarily attributable to any of the Excluded Assets, or primarily associated with the realization of the benefits of any of the Excluded Assets;
(ii) the Excluded Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing all liabilities and obligations for which Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14has expressly assumed or retained responsibility pursuant to this Agreement;
(iv) [Intentionally omitted]
(v) all pension obligations or liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than workerunder Seller's compensation) and any other employee benefit plans, programs or arrangements Defined Benefit Plan associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing eventsprovided in Section 5.4;
(vi) all Specified Contingent Liabilities obligations or liabilities with respect to all warranty claims in connection with products sold and/or delivered or services provided by Seller before the extent Closing in connection with the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve AmountTransferred Business including any liability for incidental or consequential damages relating thereto;
(vii) all obligations or liabilities and obligations with respect to all product liability claims, actions, suits, proceedings, disputes or investigations (including claims for death, personal injury or property damage) with respect to products sold and/or delivered or services provided by Seller before the extent arising from Closing in connection with the Excluded Joint VenturesTransferred Business including any liability for incidental or consequential damages relating thereto;
(viii) all liabilities and obligations coveredaccounts payable from the Division to MT Division and/or to other members of the Milacron Group, but only to on the extent covered, by any insurance policy maintained by Parent, Sellers, basis the Purchased Entities or any of their respective Affiliates; andDivision is treated as a separate legal entity for these purposes;
(ix) all other obligations and liabilities and with respect to payroll obligations of Parent and Sellers the Seller to Transferred Employees that have accrued up to the extent not relating Closing Date (including the obligation to pay the Inland Revenue the PAYE and NIC contributions as deducted) in connection with the Transferred Business and all associated UK equivalents of US withholding obligations or liabilities including any UK equivalents of US withholding obligations under any of Seller's benefit plans;
(x) all obligations and liabilities of Seller with respect to all claims, actions, suits, proceedings, disputes or investigations based on employment practices of Seller prior to the Business; provided, however, that Closing Date and all claims by employees of the Transferred Business terminated prior to the Closing Date;
(xi) all obligations and liabilities with respect to any such other liability and all claims (whether known or obligation not relating exclusively unknown) arising out of any infringement of the intellectual property rights of third parties in connection with products of the Business shipped by the Seller prior to the Business, Parent Closing Date including the claims ("the Xxxxxxx and Sellers shall only retain that portion of such liability or obligation that is not allocable Hurco Claims") relating to the Business on alleged infringement by Xxxxxxx Products and Hurco Products (each as defined in the Supply Agreement) of existing rights of X. Xxxxxxx and IMS Technology Inc ("the Existing Xxxxxxx and Hurco Rights");
(xii) all obligations or liabilities relating to deferred compensation, life insurance, severance including those equivalent to worker's compensation in the US, and all costs and expenses incurred in providing medical and dental and welfare benefits associated with any Transferred Employee prior to the Closing Date;
(xiii) any obligation of the Seller to indemnify any Transferred Employee by reason of the fact that such Person was a pro rata basisdirector, officer, employee, or agent of Seller or was serving at the request of Seller as a partner, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgements, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement or otherwise).
(cxiv) Notwithstanding anything the Excluded Liabilities listed in Schedule 1.4(b)(xiv).
(xv) all obligations and liabilities due to be performed or paid on or before the contrary Closing Date under the Acquired Contracts.
(xvi) [Intentionally omitted]
(xvii) all obligations and liabilities of Seller for breach or failure to perform any of Seller's Covenants, representations and warranties or agreements contained in or made pursuant to this Agreement; and
(xviii) except as provided in this Section 2.03Agreement, all obligations and liabilities relating to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability under Section 2.03(b).Sellers Defined Benefits Plan;
Appears in 1 contract
Samples: Asset Purchase Agreement (Cincinnati Milacron Inc /De/)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at Purchaser shall assume, effective as of the Closing, and from and after the Closing Purchaser agrees to cause the Designated Purchasers to assume, shall pay, perform and discharge when due, all liabilities or the following liabilities, obligations listed in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), whether arising before or after the Closing commitments of Seller and whether known or unknown, fixed or contingent Seller Sub (the "Assumed LiabilitiesASSUMED LIABILITIES"):
(i) all liabilities set forth on any liability, obligation or commitment relating to or arising out of the Business or any Acquired Asset, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission occurring after the Closing Date Balance Sheet, other than but not based on, arising out of or resulting from any such liabilities that are Excluded Liabilitiesfact, circumstance, occurrence, condition, act or omission existing on or occurring on or prior to the Closing Date;
(ii) all liabilities, obligations and commitments of Seller or Seller Sub under the Assigned Contracts arising after the Closing Date, except obligations, liabilities and or obligations arising out of Sellers arising under any actual or pursuant alleged breach on or prior to the Acquired ContractsClosing Date by Seller or Seller Sub of, or nonperformance on or prior to the PermitsClosing Date by Seller or Seller Sub under, the Acquired Intellectual Property and the Acquired Know-how;any Assigned Contract; and
(iii) all liabilities accounts payable and obligations relating accrued expenses of Seller or Seller Sub arising out of the operation or conduct of the Business on or prior to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employeethe Closing Date, but only to the extent such liabilities included in Closing Working Capital.
(b) Except as set forth in Section 1.03(a), and obligations are expressly assumed by notwithstanding any Designated Purchaser pursuant to Article VII other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume any liabilities, obligations and commitments of Seller and Seller Sub (the "EXCLUDED LIABILITIES"), all of which shall be retained and paid, performed and discharged when due by Seller and Seller Sub, including:
(i) any liability, obligation or commitment of Seller or Seller Sub not specifically listed in Section 1.03(a);
(ii) any liability, obligation or commitment of Seller or Seller Sub, except as specifically set forth in Section 1.03(a), relating to or arising out of the Business or any Acquired Asset, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing on or occurring on or prior to the Closing Date;
(iii) any liability, obligation or commitment of Seller or Seller Sub, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising primarily out of the operation or conduct by Seller or any of its affiliates of any business other than the Business;
(iv) any liability, obligation or commitment of Seller or Seller Sub arising primarily out of any actual or alleged breach by Seller or Seller Sub of, or nonperformance by Seller or Seller Sub under, any Contract (including any Assigned Contract) on or prior to the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") of the Contingency Reserves reflected or shown on the Closing Date Balance Sheet; andClosing;
(v) all other liabilities and obligations any liability, obligation or commitment of Parent and Sellers Seller or Seller Sub arising primarily out of (A) any claim, suit, action or proceeding ("PROCEEDING") pending or, to the knowledge of Seller or Seller Sub, threatened as of the Closing Date or (B) any actual or alleged violation by Seller or any of its affiliates of any Applicable Law on or prior to the Closing;
(vi) any account payable or accrued expense of Seller or Seller Sub to the extent relating not included in Closing Working Capital and any indebtedness for borrowed money or guarantees thereof;
(vii) any liability, obligation or commitment of Seller or Seller Sub to the Business other than the extent it relates to, or that arises out of, any Excluded Liabilities; providedAsset, however, or that with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis.
(b) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality arises out of the foregoingdistribution to, the Excluded Liabilities shall include the following:
(i) all liabilities and obligations which are attributable to any or ownership by, Seller or Seller Sub of the Excluded Assets, Assets or associated with the realization of the benefits of any Excluded Asset;
(viii) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable, (A) of Seller or Seller Sub (including any and all income Taxes of each of Seller and Seller Sub), or for which either of Seller and Seller Sub is liable, under Treasury Regulation section 1.1502-6, as a transferee, by contract, or otherwise, or (B) levied with respect to the Acquired Assets for the Pre-Closing Tax Period as provided in Section 5.18(b) and in any case which have not been explicitly assumed by Purchaser pursuant to this Agreement;
(ix) except as expressly provided in Section 5.09, any liability, obligation or commitment of Seller or Seller Sub arising under any Seller Benefit Plan;
(x) any liability, obligation or commitment arising under any Environmental Law in respect of the Excluded AssetsAcquired Assets or Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Date;
(xi) any liability, obligation or commitment of Seller or Seller Sub that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Seller or Seller Sub on or prior to the Closing Date (including claims of negligence, personal injury, product damage, product liability, product warranties, promotional obligations, strict liability, product recall or any other claims (including workers' compensation, employer's liability or otherwise)), whether such liability, obligation or commitment relates to or arises out of accidents, injuries or losses occurring on or prior to the Closing Date;
(xii) any liability, obligation or commitment of Seller or Seller Sub that relates to, or that arises out of, the termination of the employment with Seller or Seller Sub of any Business Employee, former Business Employee or service provider of the Business (including as a result of the transactions contemplated by this Agreement) or the service of any employee or consultant with Seller or Seller Sub on or prior to the Closing Date, including any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan, except to the extent expressly provided otherwise in Section 5.09; and
(xiii) any liability, obligation or commitment of Seller or Seller Sub to any of their respective affiliates.
(c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Seller or Seller Sub, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens.
(d) Seller and Purchaser acknowledge that certain expenses of the Business are paid on a periodic basis. Accordingly, the items listed below, to the extent not included in Closing Working Capital, shall be apportioned between Seller and Seller Sub and Purchaser, with Seller and Seller Sub being responsible for all such expenses attributable to periods on or prior to the Closing Date, and Purchaser being responsible for all expenses attributable to periods after the Closing Date:
(i) prepaid rent, tenant utility payments and all other percentage or additional rent, common area maintenance and sundry charges (including any HVAC charges) and commissions paid by tenants;
(ii) the Tax Liabilitiesutility company charges, other than the Assumed Tax Liabilities in an amount equal to (including electricity, gas, fuel, water and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheetsewer charges;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate general and special assessments and other than as set forth in Schedule 5.14;public or private charges affecting the Leased Property; and
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance other items typically apportioned in sale of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in assets transactions of the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of type contemplated by this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events;
(vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amount;
(vii) all liabilities and obligations to the extent arising from the Excluded Joint Ventures;
(viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; and
(ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basis.
(c) Notwithstanding anything to the contrary in this Section 2.03, to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability under Section 2.03(b).
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms Subject to Section 1.04, Purchaser shall assume, effective as of Closing, and, from and subject to the conditions of this Agreement, at the after Closing, Purchaser agrees to cause the Designated Purchasers to assume, shall pay, perform and discharge when due, all liabilities or liabilities, obligations listed in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), whether arising before or after the Closing commitments of Seller and whether known or unknown, fixed or contingent (the "Assumed Liabilities"):
its Affiliates (i) all liabilities set forth on under any trade accounts payable in respect of any Assigned Inventory that are outstanding at Closing (“Assumed Accounts Payable”) and (ii) under the Closing Date Balance SheetAssigned Contracts, other than the Regulatory Approvals or otherwise in connection with the TBZ Business or any Acquired Asset solely to the extent related to the period from and after Closing, except for any such liabilities that are Excluded Liabilities (together with the Assumed Accounts Payable, the “Assumed Liabilities”), and Purchaser shall indemnify Seller and its Affiliates against all Costs (other than Taxes arising in connection with the assumption of such Assumed Liabilities) incurred or suffered by Seller or any of its Affiliates in respect of the Assumed Liabilities following Closing, including any failure on the part of Purchaser to carry out, perform or complete any obligations with respect to the Assumed Liabilities.
(b) Notwithstanding any other provision of this Agreement, and regardless of any disclosure to Purchaser, Purchaser shall not assume any of the following liabilities, obligations and commitments of Seller or any of its Affiliates (the “Excluded Liabilities”), all of which shall be retained and paid, performed and discharged by Seller or its Affiliates:
(i) any liability or obligation of Seller or any of its Affiliates, except as specifically set forth in Section 1.03(a), relating to or arising out of the TBZ Business or any Acquired Asset, whether express or implied, accrued or contingent, in each case to the extent based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing, committed by Seller or any of its Affiliates or otherwise occurring prior to Closing;
(ii) all liabilities and obligations any liability, obligation or commitment of Sellers arising under Seller or pursuant any of its Affiliates, whether express or implied, accrued or contingent, to the Acquired Contractsextent that it relates to, or arises out of, any Excluded Asset or the Permits, operation or conduct by Seller or any of its Affiliates of any business other than the Acquired Intellectual Property and the Acquired Know-howTBZ Business;
(iii) all liabilities and obligations relating to employee benefit plans, programs any liability or arrangements associated with obligation of Seller or relating to any Transferred Employee, but only of its Affiliates to the extent such liabilities (A) arising out of any actual or alleged breach by Seller or any of its Affiliates of, or non-performance by Seller or any of its Affiliates under, any contract, licence, sublicence, agreement (including all manufacturing, confidentiality, licence, supply and obligations are expressly assumed by distribution agreements), commitment or other legally binding arrangement (including purchase orders and sales orders), whether oral or written (“Contracts”) (including any Designated Purchaser pursuant Assigned Contract), prior to Article VII Closing, (B) accruing under any Assigned Contract with respect to any period prior to Closing (except as otherwise specifically set forth in Section 1.03(a)) or (C) arising under any Contract entered into in violation of this Agreement;
(iv) any liability, obligation or commitment of Seller or any of its Affiliates with respect to Taxes, other than withholding taxes payable in the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") ordinary course of the Contingency Reserves reflected TBZ Business in respect of payments made under any Assigned Contract following Closing;
(v) any liability, obligation or shown commitment of Seller or any of its Affiliates arising out of (A) any suit, action or proceeding (“Proceeding”) to the extent such Proceeding relates to the activities of Seller or any of its Affiliates prior to Closing or (B) any actual or alleged violation by Seller or any of its Affiliates of any Applicable Law (as defined in Section 3.03) prior to Closing;
(vi) any liability, obligation or commitment of Seller or any of its Affiliates under or in relation to all Regulatory Approvals and Drug Approval Dossiers to the extent related to the period prior to Closing;
(vii) any liability, obligation or commitment of Seller or any of its Affiliates that relates to, or arises out of, products, including the TBZ Products, sold by or on the behalf of Seller or any of its Affiliates prior to Closing Date Balance Sheet(including claims of negligence, personal injury, product damage, product liability, product warranties, promotional obligations, strict liability, product recall or any other claims (including workers’ compensation, employer’s liability or otherwise)), whether such liability, obligation or commitment relates to or arises out of accidents, injuries or losses occurring prior to or after Closing; and
(vviii) any liability, obligation or commitment of Seller or any of its Affiliates to Seller or any of its Affiliates.
(c) Seller shall indemnify Purchaser and its Affiliates against all other liabilities and obligations Costs incurred or suffered by Purchaser or any of Parent and Sellers to the extent relating to the Business other than its Affiliates in respect of the Excluded Liabilities; provided, howeverincluding any failure on the part of Seller or any of its Affiliates to carry out, that perform or complete any obligations with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basisExcluded Liabilities.
(bd) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall cause acquire the Designated Purchasers to assume only Acquired Assets free and clear of all liabilities, obligations and commitments of Seller and its Affiliates, other than the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner free and clear of all or part of its business and assets) of whatever nature whether presently Liens (as defined in existence or arising hereafter. All such Section 3.05), other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
than for (i) all liabilities customary retention or reservation of title provisions in favour of suppliers, common carriers or warehousers in respect of Assigned Inventory and obligations which are attributable to any of the Excluded Assets, or associated with the realization of the benefits of any of the Excluded Assets;
(ii) the Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14;
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events;
(vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amount;
(vii) all liabilities and obligations to the extent arising from the Excluded Joint Ventures;
(viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; and
(ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability Regulatory Approvals imposed by Applicable Law or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basisterms thereof.
(ce) Notwithstanding anything For the avoidance of doubt, (i) royalty obligations payable pursuant to the contrary 1998 LifeHealth Licence shall be allocated on the basis of net profits (as defined under, and calculated in this Section 2.03accordance with, the 1998 LifeHealth Licence), determined on a daily basis, with the royalty obligations in respect of net profits prior to Closing to be for the extent a liability is included account of Seller and for the period from and after Closing to be for the account of Purchaser, and (ii) payment obligations in respect of development projects properly accrued in the calculation period prior to Closing shall be for the account of Seller and such obligations properly accrued in the period from and after Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) be for the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability under Section 2.03(b)account of Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Biovail Corp International)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at Buyer shall assume, effective as of the Closing, Purchaser agrees to cause and, from and after the Designated Purchasers to assumeClosing, Buyer shall pay, perform and discharge when due, all liabilities or due only the written obligations and written commitments of Seller expressly set forth in the written agreements specifically listed in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), 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 Closing Date Balance Sheet, other than any such liabilities that are Excluded Liabilities;
(ii) all liabilities and obligations of Sellers arising under or pursuant to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-how;
(iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only to the extent such liabilities and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this Agreement;
(iv) the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount"1.03(a) of the Contingency Reserves reflected or shown on the Closing Date Balance Sheet; and
Seller Disclosure Schedule (v) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Businesscollectively, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to “Assigned/Assumed Contracts”) (collectively, the Business on a pro rata basis“Assumed Liabilities”).
(b) Notwithstanding anything herein to the contrary Section 1.03(a) or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilitiesprovision of this Agreement or any Ancillary Document, and nether the Purchaser regardless of any disclosure or disclosure schedule to Buyer, neither Buyer nor any of its subsidiaries or other Designated Purchaser affiliates shall assume any other liability or obligation of Parent the following liabilities, obligations and commitments of Seller or any NonSeller Subsidiary (collectively, the “Excluded Liabilities”), all of which shall be retained and paid, performed and discharged when due by Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to NonSeller Subsidiary, as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the followingapplicable:
(i) any liability, obligation or commitment of Seller or any NonSeller Subsidiary relating to or arising out of any Acquired Asset, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or arising on or occurring prior to the Closing, other than (a) written obligations or written commitments of Seller set forth in the Assigned/Assumed Contracts (that are customer Contracts with a deferred revenue provision) set forth in Section 1.03(a) of the Seller Disclosure Schedule solely to the extent arising under such Assigned/Assumed Contracts after the Closing Date to support, maintain or repair any products or services sold by Seller prior to the Closing Date, including such warranty obligations arising from such Assigned/Assumed Contracts (the “Support Obligations”), (b) written cash commitments under the Sequence Design, Inc. Year 2009 Sales Incentive Compensation Plans for all liabilities Sales Personnel and FAEs to Seller’s sales personnel and FAEs and third parties solely to the extent set forth in such Assigned/Assumed Contracts set forth in Section 1.03(a) of the Seller Disclosure Schedule arising after the Closing Date based on product sales of Seller made prior to the Closing Date and more fully set forth in an appendix to the Seller Disclosure Schedule, provided that the cash commitments shall be reduced by the cash received by Seller or the Seller Subsidiaries prior to the Closing Date from customers, in which case, Seller shall be responsible for said commissions and (c) written royalty obligations set forth in the Verific Software License Agreement dated September 3, 2003, the Pextra Embedded Technology License Agreement dated November 3, 2006, and the Concept Engineering License Agreement dated February 10, 2007 solely for those royalty obligations attached to accounts receivable to be acquired on the Closing Date by the Buyer and more fully set forth in an appendix to the Seller Disclosure Schedule (provided further that such cash royalty obligations shall be reduced by the cash received by the Seller or the Seller Subsidiaries prior to the Closing Date from customers, in which are attributable case the Seller shall be responsible for said royalty obligations);
(ii) any liability, obligation or commitment of Seller (including the NonSeller Subsidiaries) (A) arising out of any actual or alleged breach by Seller (including the NonSeller Subsidiaries) of, or nonperformance by Seller (including the NonSeller Subsidiaries) under, any Contract prior to the Closing, or (B) accruing under any Assigned/Assumed Contract with respect to any period prior to the Closing;
(iii) any liability, obligation or commitment arising out of (A) any suit, action or proceeding pending or threatened as of the Closing Date, whether brought prior to, on or after the Closing Date or (B) any actual or alleged violation by Seller (including the NonSeller Subsidiaries) or any of its affiliates of any applicable statute, law, ordinance, decree, order, rule, judgment, bylaw, clearances, directive, guideline, policy, requirement, government restriction or regulation (collectively, “Law”) prior to the Closing;
(iv) any liability, obligation or commitment of Seller or any NonSeller Subsidiary that relates to, or that arises out of, any Excluded AssetsAsset, or that arises out of the distribution to, or ownership by, Seller or any NonSeller Subsidiary of any Excluded Asset or associated with the realization of the benefits of any of the Excluded Assets;
(ii) the Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14;
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this AgreementAsset;
(v) any liability, obligation or commitment for all liabilities (A) domestic and obligations arising from worker's compensation claims foreign federal, state, county, local and municipal taxes, assessments, duties or similar charges of any kind whatsoever, including all corporate, franchise, income, sales, use, ad valorem, receipts, value-added, profits, license, withholding, employment, excise, property, net worth, capital gains, transfer, stamp, documentary, social security, payroll, environmental, alternative minimum, occupation, recapture, registration and other taxes, and including any interest, penalties and additions imposed with respect to such amounts; (B) liability for the payment of any amounts of the type described in clause (A) as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group; and (C) liability for the payment of any amounts as a result of an express or implied obligation, pursuant to an agreement or otherwise, to indemnify any other person with respect to the payment of any amounts of the type described in clause (A) or (B) (the amounts of the type described in clauses (A), (B) and (C) being hereinafter called the “Taxes”), whether or not accrued, assessed or currently due and payable, (x) of Seller, the NonSeller Subsidiaries and any of their respective affiliates or (y) relating to pre-the Acquired Assets or the Assumed Liabilities for any tax period (or portion thereof) ending on or prior to the Closing eventsDate;
(vi) all Specified Contingent Liabilities to the extent any liability, obligation or commitment for the aggregate amount of Specified Contingent Liabilities exceeds all fees and expenses incurred by Seller, any NonSeller Subsidiary or either Seller Subsidiary (including the Contingent Reserve Amountfees 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, any NonSeller Subsidiary or either Seller Subsidiary) arising from or in connection with this Agreement or the Ancillary Documents or the transactions contemplated hereby or thereby or the liquidation or dissolution of Seller or any NonSeller Subsidiary following the Closing (collectively, the “Transaction Costs”);
(vii) all liabilities and obligations any liability, obligation or commitment of Seller to any of its affiliates, including the extent arising from the Excluded Joint VenturesNonSeller Subsidiaries or any liability, obligation or commitment of any Seller Subsidiary to Seller or any NonSeller Subsidiary;
(viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; andIndebtedness;
(ix) all any liability, obligation or commitment relating to (A) the employment or termination of employment of any Participant with Seller, any NonSeller Subsidiary or a Seller Subsidiary (provided such termination of a Participant of a Seller Subsidiary occurs prior to or on the Closing Date) or (B) the receipt by any Participant of benefits from Seller or any of its affiliates or pursuant to any Benefit Plan or Benefit Agreement;
(x) any other liabilities liability, obligation or commitment as and obligations of Parent and Sellers to the extent such liability, obligation or commitment is or is not reflected on the face of the Financial Statements or Recent Financial Statements (including any such liabilities that relate to, or arise out of, the Assigned/Assumed Contracts or any such liabilities, obligations or commitments relating to any express or implied warranties, other than Seller’s (including the Business; providedSeller Subsidiaries’) written obligations or written commitments for the Support Obligations) and regardless of whether or not any claims made with respect thereto are made prior to, however, that on or after the Closing Date;
(xi) accounts payable accrued with respect to the conduct of the business of Seller (including the NonSeller Subsidiaries) prior to the Closing Date;
(xii) any such liabilities or obligations of Seller or the NonSeller Subsidiaries incurred, arising from or out of or in connection with this Agreement or the Ancillary Documents or the events or negotiations leading up to this Agreement or the Ancillary Documents;
(xiii) any claims related to Intellectual Property matters, including misappropriation of trade secrets, ownership or infringement;
(xiv) any liability under any Benefit Agreement at any time maintained, contributed to or required to be contributed to by or with respect to Seller or any NonSeller Subsidiary or under which Seller or any NonSeller Subsidiary may incur liability, or any contributions, benefits or liabilities therefore, or any liabilities with respect to Seller’s or its affiliates’ withdrawal or partial withdrawal from or termination of any Benefit Agreement;
(xv) any liability under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or any similar state statute (“COBRA”);
(xvi) any liability of Seller or its affiliates under the WARN Act, and any similar state, local U.S. or non-U.S. law or regulation;
(xvii) any liability of Seller or any NonSeller Subsidiary for payroll obligations and/or severance and/or paid time and/or mandatory or customary payment and/or expense accounts and/or benefit and/or entitlement for employees of Seller or any NonSeller Subsidiary;
(xviii) any liability, obligation or commitment of Seller or the NonSeller Subsidiaries that relates to, or that arises or exists out of, products manufactured, shipped or sold by or on behalf of Seller or any of its affiliates, including the NonSeller Subsidiaries, on or prior to the Closing Date (including environmental or health and safety claims, claims of negligence, personal injury, product damage, product liability, product warranties, promotional obligations, strict liability, product recall or any other claims (including workers’ compensation, employer’s liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basis.
(c) Notwithstanding anything to the contrary in this Section 2.03, to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05otherwise)), such liability shall (in an amount equal to (and no amount in excess of) other than Seller’s written obligations or written commitments for the amount included in such calculation) be deemed to be an Assumed LiabilitySupport Obligations, whether such liability, obligation or not such liability is listed as an Excluded Liability under Section 2.03(b)commitment relates to or arises out of accidents, injuries or losses occurring on or prior to or after the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Apache Design Solutions Inc)
