Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of the Closing, and from and after the Closing Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Sellers (the "Assumed Liabilities"), other than any Excluded Liabilities: (i) all liabilities, obligations and commitments of Sellers under the Assigned Contracts, except obligations, liabilities or obligations arising out of any actual or alleged breach on or prior to the Closing by Sellers of, or nonperformance on or prior to the Closing by Sellers under, any Assigned Contract; (ii) all accounts payable arising exclusively out of the operation or conduct of the Business prior to and following the Closing; (iii) all off-balance sheet liabilities listed on Schedule 1.03(a)(iii); (iv) the Working Capital Liabilities; and (v) all other liabilities, obligations and commitments relating to or arising primarily out of the operation or conduct of the Business arising after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not relating to or arising out of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing Date. (b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume any of the following liabilities, obligations and commitments of Sellers (the "Excluded Liabilities"), all of which shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliates: (i) any liability, obligation or commitment of Sellers not specifically set forth in Section 1.03(a); (ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6- (iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers of, or nonperformance by Sellers under, any Contract (including any Assigned Contract) prior to the Closing; (iv) any liability, obligation or commitment of Sellers arising out of (A) any claim, suit, action or proceeding ("Proceeding") pending or, to the Knowledge of Sellers, threatened as of the Closing Date or (B) any actual or alleged violation by Sellers or any of their affiliates of any Applicable Law prior to the Closing; (v) any liability, obligation or commitment of Sellers to the extent it relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, or ownership by, Sellers of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset; (vi) any account payable or accrued expense of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included in Working Capital Liabilities and any indebtedness for borrowed money or guarantees thereof; (vii) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date)); (viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan; (ix) any liability, obligation or commitment of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Sellers 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; =============================================================================== -7- (x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement) on or prior to Closing, including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan; (xi) any liability, obligation or commitment arising under any Environmental Law in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Date; (xii) any liability, obligation or commitment arising in respect of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result of the consummation of the Acquisition; (xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and (xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv). (c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser HoldCo shall assume, effective as of the Closing, and from and after the Closing Purchaser Closing, HoldCo shall pay, perform and discharge when due, and indemnify Ashland and its affiliates and each of their respective Representatives against, and defend and hold them harmless from, all of the following liabilities, obligations and commitments of Sellers 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 become due, of Ashland (collectively, the "Assumed Liabilities"), other than any Excluded Retained Liabilities:
(i) all liabilities, obligations and commitments of Sellers Ashland under the Assigned Contracts, except obligations, liabilities or obligations arising out of any actual or alleged breach on or prior Contracts to the Closing by Sellers ofextent such liabilities, or nonperformance on or prior obligations and commitments relate to the Closing by Sellers under, any Assigned Contractperiod from and after the Closing;
(ii) all accounts payable arising exclusively liabilities, obligations and commitments of Ashland under any maleic anhydride product exchange agreements that are reflected in the Statement (as defined in Section 1.05(a)) in accordance with Section 1.05;
(iii) all liabilities, obligations and commitments of Ashland to the extent expressly assumed by HoldCo in accordance with Section 4.03;
(iv) all Environmental Liabilities (as defined in Section 6.01(b)) of Ashland to the extent they arise out of both (A) the operation of any of the Transferred Assets or the operation or conduct of the Maleic Business and (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 and following the Closing;
, but only, in the case of this clause (iiiB)(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) and (y) of this Section 1.03(a)(iv)(B), such Environmental Liability will be apportioned between HoldCo and Ashland in proportion to the extent to which the activities of each party contributed to the cause of the Environmental Liability, taking into account all offpertinent factors, including the length of ownership by HoldCo and Ashland of the relevant property during the time of the event or 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-balance sheet liabilities listed month period ending on Schedule 1.03(a)(iii);
the following anniversary of the Closing Date (ivprovided, however, that with respect to any Environmental Liability arising from any matter referred to in Section 3.11(b) of the Working Capital LiabilitiesMaleic Business Disclosure Liability Letter, Ashland shall be deemed to have received written notice ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ (in reasonable detail) of such Environmental Liability prior to the first anniversary of the Closing Date): ------------------------------------------------------------------------------ First through Fifth 0% ------------------------------------------------------------------------------ Sixth 20% ------------------------------------------------------------------------------ Seventh 40% ------------------------------------------------------------------------------ Eighth 60% ------------------------------------------------------------------------------ Ninth 80% ------------------------------------------------------------------------------ If such notice is not 100% received by Ashland on or prior to the ninth anniversary of the Closing Date ------------------------------------------------------------------------------ ; and
(v) all other liabilities, obligations and commitments relating of Ashland to the extent such liabilities, obligations and commitments relate to or arising primarily arise out of the operation of any of the Transferred Assets or the operation or conduct of the Business arising Maleic Business, in each case from and after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not relating to or arising out of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing DateClosing.
(b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, Purchaser HoldCo shall not assume 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 following liabilitiesMaleic Business of any nature, obligations whether known or unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise, and commitments of Sellers whether due or to become due, except the Assumed Liabilities (collectively, the "Excluded Retained Liabilities"). Without limiting the generality of the foregoing, all of which shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliatesthe Retained Liabilities include:
(i) any liability, obligation or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, Ashland to the extent arising out of the operation or conduct by Sellers Ashland or any of their its affiliates of any business other than the Maleic Business; =============================================================================== -6-;
(ii) all accounts payable of Ashland to the extent arising out of the operation or conduct of the Maleic Business prior to the Closing;
(iii) any liability, obligation or commitment of Sellers Ashland (A) to the extent arising out of any actual or alleged breach by Sellers Ashland of, or nonperformance by Sellers 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 Sellers Ashland arising out of (A) any warranty claim, suit, action, proceeding, investigation, governmental action or proceeding other cause of action or claim associated with or relating to the Maleic Business or the Transferred Assets (a "ProceedingClaim") pending or, to the Knowledge extent arising out of Sellersactions, threatened as of the Closing Date omissions or (B) any actual conditions occurring or alleged violation by Sellers existing on or any of their affiliates of any Applicable Law prior to the ClosingClosing Date;
(v) any liability, obligation or commitment of Sellers Ashland to the extent it such liability, obligation or commitment relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, ownership or ownership by, Sellers operation by Ashland of any of the Excluded Assets or associated with the realization of the benefits of any Excluded AssetAssets;
(vi) except as otherwise expressly provided in Section 4.03, any account payable liability, obligation or accrued expense commitment of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included in Working Capital Liabilities and Ashland arising under any indebtedness for borrowed money or guarantees thereofMaleic Benefit Plan;
(vii) any liability, obligation or commitment for Taxesof Ashland to any of its divisions, whether subsidiaries or not accrued, assessed or currently due and payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date))affiliates;
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers Ashland or any of its affiliates under any of the Transaction Agreements or any of the Ancillary Agreements;
(ix) the amount, if any, equal to the aggregate book value (as of the Closing Date) of all Receivables that relates toare not collected after the Closing Date and remain outstanding for a period of more than 60 days after their respective due dates (as reflected in the books and records of the Maleic Business) notwithstanding that HoldCo has made reasonable efforts to collect such Receivables, which amount shall be promptly paid by Ashland to HoldCo and, until paid, shall be deemed for all purposes of this Agreement to be a Retained Liability; provided, however, in the event any one or that arises more of the Receivables become Retained Liabilities under this clause (ix), promptly following Ashland's payment to HoldCo with respect to such Receivables under this clause (ix), HoldCo shall assign all of its rights, title and interests in, to and under such Receivables and, to the extent HoldCo thereafter receives any payments from the relevant customers on account of such Receivables, HoldCo shall promptly forward such payments to Ashland; and
(x) any Environmental Liability arising out of, services performed of events occurring or products manufactured, shipped circumstances or sold by or on behalf of Sellers on or conditions arising prior to the Closing Date except for Environmental Liabilities that are Assumed Liabilities pursuant to Section 1.03(a)(iv); provided, however, an Environmental Liability that otherwise would be considered a Retained Liability under this Section 1.03(b)(x) 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 (including claims A) is the result 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 a change in use after the Closing Date; =============================================================================== -7-
Date of (x) except any portion of the Premises consisting of the parcels of real property on which the maleic anhydride plant located in Neal, West Virginia (the "Plant") is located (which parcels are identixxxx xx such in Section 3.03 of the Maleic Business Disclosure Letter) to a use substantially unrelated to the extent provided in Section 5.08, any liability, obligation or commitment use of Sellers that relates to, or that arises out of, the termination such Premises as of the employment with Sellers of Closing Date or (y) any employee or former employee other portion of the Business Premises to a use other than an industrial use or (including B) was discovered as a result of a Phase II or other intrusive sampling, testing or investigation conducted after the transactions contemplated 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 this Agreementapplicable Environmental Laws (as defined in Section 3.11(b)), (y) as required by Environmental Laws 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 person that is not an affiliate of HoldCo or (z) in connection with a condition first discovered as a result of construction activities commencing after the Closing Date at, on or prior beneath the Premises, so long as such construction activities are undertaken in connection with (1) with respect to Closing, including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or commitment arising under any Environmental Law in respect portion of the Acquired Assets or Premises consisting of the Businessparcels of real property on which the Plant is located, a use substantially related to the extent arising out use of conditions existing or events occurring on or prior to the Closing Date;
(xii) any liability, obligation or commitment arising in respect such Premises as of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result (2) with respect to any other portion of the consummation Premises, an industrial use of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv)such Premises.
(c) Purchaser HoldCo shall acquire the Acquired Transferred Assets free and clear of all liabilities, obligations and commitments of SellersAshland, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted LiensLiens (as defined in Section 6.01(b)) and other than any Lien pursuant to the HoldCo Borrowing arrangements or arising from actions or inactions of any of the Marathon Parties or their affiliates (and not of any of the Ashland Parties or their affiliates).
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser HoldCo shall assume, effective as of the Closing, and from and after the Closing Purchaser Closing, HoldCo shall pay, perform and discharge when due, and indemnify Ashland and its affiliates and each of their respective Representatives against, and defend and hold them harmless from, all of the following liabilities, obligations and commitments of Sellers 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 become due, of Ashland (collectively, the "Assumed Liabilities"), other than any Excluded Retained Liabilities:
(i) all liabilities, obligations and commitments of Sellers Ashland under the Assigned Contracts, except obligations, liabilities or obligations arising out of any actual or alleged breach on or prior Contracts to the Closing by Sellers ofextent such liabilities, or nonperformance on or prior obligations and commitments relate to the Closing by Sellers under, any Assigned Contractperiod from and after the Closing;
(ii) all accounts payable arising exclusively liabilities, obligations and commitments of Ashland under any maleic anhydride product exchange agreements that are reflected in the Statement (as defined in Section 1.05(a)) in accordance with Section 1.05;
(iii) all liabilities, obligations and commitments of Ashland to the extent expressly assumed by HoldCo in accordance with Section 4.03;
(iv) all Environmental Liabilities (as defined in Section 6.01(b)) of Ashland to the extent they arise out of both (A) the operation of any of the Transferred Assets or the operation or conduct of the Maleic Business and (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 and following the Closing;
, but only, in the case of this clause (iiiB)(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) and (y) of this Section 1.03(a)(iv)(B), such Environmental Liability will be apportioned between HoldCo and Ashland in proportion to the extent to which the activities of each party contributed to the cause of the Environmental Liability, taking into account all offpertinent factors, including the length of ownership by HoldCo and Ashland of the relevant property during the time of the event or 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-balance sheet liabilities listed month period ending on Schedule 1.03(a)(iii);
the following anniversary of the Closing Date (ivprovided, however, that with respect to any Environmental Liability arising from any matter referred to in Section 3.11(b) of the Working Capital LiabilitiesMaleic Business Disclosure Liability Letter, Ashland shall be deemed to have received written notice ------------------------------------------------------------------------------ ------------------------------------------------------------------------------ (in reasonable detail) of such Environmental Liability prior to the first anniversary of the Closing Date): ------------------------------------------------------------------------------ First through Fifth 0% ------------------------------------------------------------------------------ Sixth 20% ------------------------------------------------------------------------------ Seventh 40% ------------------------------------------------------------------------------ Eighth 60% ------------------------------------------------------------------------------ Ninth 80% ------------------------------------------------------------------------------ If such notice is not 100% received by Ashland on or prior to the ninth anniversary of the Closing Date ------------------------------------------------------------------------------ ; and
(v) all other liabilities, obligations and commitments relating of Ashland to the extent such liabilities, obligations and commitments relate to or arising primarily arise out of the operation of any of the Transferred Assets or the operation or conduct of the Business arising Maleic Business, in each case from and after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not relating to or arising out of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing DateClosing.
(b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, Purchaser HoldCo shall not assume 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 following liabilitiesMaleic Business of any nature, obligations whether known or unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise, and commitments of Sellers whether due or to become due, except the Assumed Liabilities (collectively, the "Excluded Retained Liabilities"). Without limiting the generality of the foregoing, all of which shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliatesthe Retained Liabilities include:
(i) any liability, obligation or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, Ashland to the extent arising out of the operation or conduct by Sellers Ashland or any of their its affiliates of any business other than the Maleic Business; =============================================================================== -6-;
(ii) all accounts payable of Ashland to the extent arising out of the operation or conduct of the Maleic Business prior to the Closing;
(iii) any liability, obligation or commitment of Sellers Ashland (A) to the extent arising out of any actual or alleged breach by Sellers Ashland of, or nonperformance by Sellers 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 Sellers Ashland arising out of (A) any warranty claim, suit, action, proceeding, investigation, governmental action or proceeding other cause of action or claim associated with or relating to the Maleic Business or the Transferred Assets (a "ProceedingClaim") pending or, to the Knowledge extent arising out of Sellersactions, threatened as of the Closing Date omissions or (B) any actual conditions occurring or alleged violation by Sellers existing on or any of their affiliates of any Applicable Law prior to the ClosingClosing Date;
(v) any liability, obligation or commitment of Sellers Ashland to the extent it such liability, obligation or commitment relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, ownership or ownership by, Sellers operation by Ashland of any of the Excluded Assets or associated with the realization of the benefits of any Excluded AssetAssets;
(vi) except as otherwise expressly provided in Section 4.03, any account payable liability, obligation or accrued expense commitment of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included in Working Capital Liabilities and Ashland arising under any indebtedness for borrowed money or guarantees thereofMaleic Benefit Plan;
(vii) any liability, obligation or commitment for Taxesof Ashland to any of its divisions, whether subsidiaries or not accrued, assessed or currently due and payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date))affiliates;
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers Ashland or any of its affiliates under any of the Transaction Agreements or any of the Ancillary Agreements;
(ix) the amount, if any, equal to the aggregate book value (as of the Closing Date) of all Receivables that relates toare not collected after the Closing Date and remain outstanding for a period of more than 60 days after their respective due dates (as reflected in the books and records of the Maleic Business) notwithstanding that HoldCo has made reasonable efforts to collect such Receivables, which amount shall be promptly paid by Ashland to HoldCo and, until paid, shall be deemed for all purposes of this Agreement to be a Retained Liability; provided, however, in the event any one or that arises more of the Receivables become Retained Liabilities under this clause (ix), promptly following Ashland's payment to HoldCo with respect to such Receivables under this clause (ix), HoldCo shall assign all of its rights, title and interests in, to and under such Receivables and, to the extent HoldCo thereafter receives any payments from the relevant customers on account of such Receivables, HoldCo shall promptly forward such payments to Ashland; and
(x) any Environmental Liability arising out of, services performed of events occurring or products manufactured, shipped circumstances or sold by or on behalf of Sellers on or conditions arising prior to the Closing Date except for Environmental Liabilities that are Assumed Liabilities pursuant to Section 1.03(a)(iv); provided, however, an Environmental Liability that otherwise would be considered a Retained Liability under this Section 1.03(b)(x) 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 (including claims A) is the result 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 a change in use after the Closing Date; =============================================================================== -7-
Date of (x) except any portion of the Premises consisting of the parcels of real property on which the maleic anhydride plant located in Neal, West Virginia (the "Plant") is located (which parcels are identifxxx xx xuch in Section 3.03 of the Maleic Business Disclosure Letter) to a use substantially unrelated to the extent provided in Section 5.08, any liability, obligation or commitment use of Sellers that relates to, or that arises out of, the termination such Premises as of the employment with Sellers of Closing Date or (y) any employee or former employee other portion of the Business Premises to a use other than an industrial use or (including B) was discovered as a result of a Phase II or other intrusive sampling, testing or investigation conducted after the transactions contemplated 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 this Agreementapplicable Environmental Laws (as defined in Section 3.11(b)), (y) as required by Environmental Laws 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 person that is not an affiliate of HoldCo or (z) in connection with a condition first discovered as a result of construction activities commencing after the Closing Date at, on or prior beneath the Premises, so long as such construction activities are undertaken in connection with (1) with respect to Closing, including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or commitment arising under any Environmental Law in respect portion of the Acquired Assets or Premises consisting of the Businessparcels of real property on which the Plant is located, a use substantially related to the extent arising out use of conditions existing or events occurring on or prior to the Closing Date;
(xii) any liability, obligation or commitment arising in respect such Premises as of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result (2) with respect to any other portion of the consummation Premises, an industrial use of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv)such Premises.
(c) Purchaser HoldCo shall acquire the Acquired Transferred Assets free and clear of all liabilities, obligations and commitments of SellersAshland, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted LiensLiens (as defined in Section 6.01(b)) and other than any Lien pursuant to the HoldCo Borrowing arrangements or arising from actions or inactions of any of the Marathon Parties or their affiliates (and not of any of the Ashland Parties or their affiliates).
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this AgreementPurchaser is not assuming any debt, Purchaser shall assume, effective as liability or obligations of the ClosingCompany, and from and any Shareholder or any Individual Seller, whether known or unknown, fixed or contingent, except for the liabilities of the Company to be paid or performed after the Closing Date under the Assumed Contracts listed in SCHEDULE 1.1(c) (the "Assumed Contracts") which are assigned by the Company to the Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Sellers (the "Assumed Liabilities"). Except as and to the extent otherwise expressly provided in this Agreement, Purchaser does not, and shall not, assume or be deemed to assume, nor shall Purchaser discharge, be responsible for or liable with respect to any other than liabilities or obligations of the Company or any Excluded other person, whether arising prior to, on or after the Closing Date (collectively, the "Retained Liabilities"), including without limitation:
(ia) all liabilities, obligations and commitments of Sellers under the Assigned Contracts, except obligations, liabilities any liability or obligations of the Company arising out of or relating to any contract or agreement not fully and effectively assigned to and specifically assumed by Purchaser pursuant to this Agreement, including without limitation any obligations of the Shareholders or the Company to Xxxxx Xxxxxx or Xxxxxxx Xxxxx arising out of the working relationship between the Company and each such individual;
(b) any liability or obligations of the Company arising out of or relating to any employee benefit (including health) plans, programs, policies or other arrangements or agreements which provided the Company's employees with benefits, including the payment of severance pay or special bonuses, if any, to terminated employees under agreements or policies not constituting Assumed Contracts;
(c) any liability or obligations of the Company arising out of any actual litigation, claim, arbitration or alleged breach on or prior other similar proceeding relating to the Closing by Sellers of, or nonperformance on or prior to the Closing by Sellers under, any Assigned Contract;
(ii) all accounts payable arising exclusively out of the operation or conduct of the Business prior to and following the Closing;
(iii) all off-balance sheet liabilities listed on Schedule 1.03(a)(iii);
(iv) the Working Capital Liabilities; and
(v) all other liabilities, obligations and commitments relating to or arising primarily out of the operation or conduct of the Business arising after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not relating to or arising out of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing Date.
(b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume any of the following liabilities, obligations and commitments of Sellers (the "Excluded Liabilities"), all of which shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliates:
(i) any liability, obligation or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6-
(iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers of, or nonperformance by Sellers under, any Contract (including any Assigned Contract) prior to the Closing;
(iv) any liability, obligation or commitment of Sellers arising out of (A) any claim, suit, action or proceeding ("Proceeding") pending or, to the Knowledge of Sellers, threatened as of the Closing Date or (B) any actual or alleged violation by Sellers or any of their affiliates of any Applicable Law prior to the Closing;
(v) any liability, obligation or commitment of Sellers to the extent it relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, or ownership by, Sellers of the Excluded Purchased Assets or associated with the realization of the benefits of any Excluded Asset;
(vi) any account payable or accrued expense of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to regardless of whether or not such litigation, claim, arbitration or other similar proceeding is pending, threatened or asserted before, on or after the extent the same are not included in Working Capital Liabilities and any indebtedness for borrowed money or guarantees thereofClosing Date;
(viid) any liabilityliabilities and obligations of the Company relating to the Excluded Assets, obligation including without limitation all automobile leases and automobile loans;
(e) any and all liabilities and obligations, direct or commitment indirect, fixed or contingent, for Taxes, whether or not accruedsuch Taxes are assessed prior to, assessed or currently due and payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date));
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Sellers 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; =============================================================================== -7-
(x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement) on or prior to Closing, including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or commitment arising under any Environmental Law in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Date;
(xiif) any liability, obligation or commitment arising in respect of any employees or former employees accounts payable of the Sellers Company and credit balances of accounts receivable of the Company as of the Closing Date, including without limitation, all Company, Shareholder and Individual Seller credit card balances, any amounts due Valley Independent Bank, and miscellaneous payables other than a pro rata share of the rent and utilities for the Company's building for the month in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to which the Closing Date or as a result of the consummation of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliatesoccurs; and
(xivg) any liability, obligation or commitment (of the "Excluded Debt") pursuant Company to any Contract listed on Schedule 1.03(b)(xiv)of its trust account(s) or any obligaitons of any such trust account(s) to any beneficiary thereof.
(c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens.
Appears in 1 contract
Assumption of Certain Liabilities. At Closing, Purchaser shall assume only the following liabilities and obligations of Seller related to the Business, except those liabilities and obligations listed in Schedule 1.2(Z) referred to below (athe "ASSUMED LIABILITIES"):
(A) Upon the terms all Seller's accounts payable, accrued expenses, deferred revenues and other current liabilities (including without limitation and subject to the conditions of this Agreementlimitations contained in Section 12.3, Purchaser shall assumebelow, effective pursuant to Shareholder's engagement letter with Xxxxxxx XxXxxxxxx LLP dated as of July 2, 2002 and relating to this Agreement and the Closing, and from and after the Closing Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Sellers (the "Assumed Liabilities"transactions contemplated thereby), other than any Excluded Liabilities:;
(iB) all liabilities, liabilities and obligations relating to capital leases for equipment used by Seller in conducting its operations;
(C) all liabilities and commitments of Sellers under the Assigned Contracts, except obligations, liabilities or obligations arising out of or relating to any actual or alleged breach on or prior to of the Assets and the Business which arise after the Closing by Sellers of, or nonperformance on or prior to the Closing by Sellers under, any Assigned ContractDate;
(iiD) all accounts payable arising exclusively out of liabilities and obligations set forth in the operation or conduct of the Business prior to and following the Closing;
Employee Transition Agreement (iii) all off-balance sheet liabilities listed on Schedule 1.03(a)(iiias defined herein);
(iv) the Working Capital Liabilities; and
(vE) all other liabilitiessales, obligations and commitments relating to use, registration, stamp, recording, documentary, deeds, transfer or arising primarily out of the operation or conduct of the Business arising after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not relating to or arising out of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing Date.
(b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume any of the following liabilities, obligations and commitments of Sellers (the "Excluded Liabilities"), all of which shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliates:
(i) any liability, obligation or commitment of Sellers not specifically set forth similar Taxes incurred in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6-
(iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers of, or nonperformance by Sellers under, any Contract (including any Assigned Contract) prior to the Closing;
(iv) any liability, obligation or commitment of Sellers arising out of (A) any claim, suit, action or proceeding ("Proceeding") pending or, to the Knowledge of Sellers, threatened as of the Closing Date or (B) any actual or alleged violation by Sellers or any of their affiliates of any Applicable Law prior to the Closing;
(v) any liability, obligation or commitment of Sellers to the extent it relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, or ownership by, Sellers of the Excluded Assets or associated connection with the realization of the benefits of any Excluded Asset;
(vi) any account payable or accrued expense of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included in Working Capital Liabilities and any indebtedness for borrowed money or guarantees thereof;
(vii) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date));
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Sellers 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; =============================================================================== -7-
(x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement) on or prior to Closing, including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or commitment arising under any Environmental Law in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Date;
(xii) any liability, obligation or commitment arising in respect of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result of the consummation of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv).
(c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Sellers, other . Other than the Assumed Liabilities, Purchaser is not assuming, shall not have any responsibility or obligation with respect to and free and clear the parties do not intend Purchaser to assume any obligations or liabilities of all LiensSeller, other than Permitted Lienspursuant to this Agreement or otherwise, whether direct or indirect, contingent or accrued, known or unknown, of any kind whatsoever including, but not limited to, those listed on SCHEDULE 1.2(Z) appended hereto (collectively the "NONASSUMED LIABILITIES").
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon The Purchaser agrees to assume at the terms Closing the Assumed Liabilities at the Book Value thereof and subject agrees to perform the conditions of this Agreement, Purchaser obligations incident thereto. The Assumed Liabilities shall assume, effective as not include any obligation or liability arising from any act which would constitute a breach of the Closing, representations and from and after warranties of SHOC or the Principals contained in Sections 6.1 or 6.2. Nothing contained in this Section 2 or in any instrument or assumption executed by the Purchaser at the Closing Purchaser shall paybe deemed to release or relieve the Principals, perform SHOC or April from their or its respective representations, warranties, covenants and discharge when due, all the following liabilities, obligations and commitments of Sellers (the "Assumed Liabilities"), other than any Excluded Liabilities:
(i) all liabilities, obligations and commitments of Sellers under the Assigned Contracts, except obligations, liabilities or obligations arising out of any actual or alleged breach on or prior to the Closing by Sellers of, or nonperformance on or prior to the Closing by Sellers under, any Assigned Contract;
(ii) all accounts payable arising exclusively out of the operation or conduct of the Business prior to and following the Closing;
(iii) all off-balance sheet liabilities listed on Schedule 1.03(a)(iii);
(iv) the Working Capital Liabilities; and
(v) all other liabilities, obligations and commitments relating to or arising primarily out of the operation or conduct of the Business arising after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not relating to or arising out of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing Date.
(b) Notwithstanding Section 1.03(a), or any other provision of agreements contained in this Agreement or any Ancillary Agreementcertificate, Purchaser shall not assume any of the following liabilitiesschedule, obligations and commitments of Sellers (the "Excluded Liabilities"), all of which shall be retained and paid, performed and discharged when due by Sellers instrument or one of their respective affiliates:
(i) any liability, obligation document executed pursuant hereto or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6-
(iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers of, or nonperformance by Sellers under, any Contract (including any Assigned Contract) prior to the Closing;
(iv) any liability, obligation or commitment of Sellers arising out of (A) any claim, suit, action or proceeding ("Proceeding") pending or, to the Knowledge of Sellers, threatened as of the Closing Date or (B) any actual or alleged violation by Sellers or any of their affiliates of any Applicable Law prior to the Closing;
(v) any liability, obligation or commitment of Sellers to the extent it relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, or ownership by, Sellers of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(vi) any account payable or accrued expense of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included in Working Capital Liabilities and any indebtedness for borrowed money or guarantees thereof;
(vii) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date));
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Sellers 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; =============================================================================== -7-
(x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement) on or prior to Closingconnection herewith, including, without limitation, the obligations of the indemnity provisions in favor of the Purchaser in this Agreement. The Assumed Liabilities shall not include any salary, severance, bonuses, vacation, stock options liability or other employee benefits, rights obligation of the Companies or obligations under the Principals arising out of or relating to:
(a) any Seller Benefit Planactual or alleged tortious intentional misconduct of the Companies or any of their employees or agents;
(xib) any liabilitybusiness or business activities of SHOC or April which are not part of SHOC’s Business or April’s Business;
(c) any liability for expenses or Taxes, obligation if any, in connection with, resulting from or commitment arising out of this Agreement or the transactions contemplated hereby, attributable to any period prior to Closing;
(d) any liability of SHOC or April for any Taxes of any kind or character, attributable to any period prior to Closing;
(e) any liability of the Seller or April under or arising by reason of this Agreement;
(f) any liability for any expense or payable due in accordance with the terms of any Contract or other agreement to which SHOC is a party for the period prior to Closing except as shown on the Accrual Schedule; (g) any liability under any Environmental Law except as provided in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Date;
(xii) any liability, obligation or commitment arising in respect of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result of the consummation of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliatesSection 6.3.13; and
(xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv).
(c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens.or
Appears in 1 contract
Samples: Agreement for Sale and Purchase of Assets and Stock (Beazer Homes Usa Inc)
Assumption of Certain Liabilities. (a) Upon Subject to the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective except as otherwise specifically provided in this Section 1.2 (including in respect of the ClosingRetained Liabilities, as set forth in paragraph (b) below) or in Section 1.3, Buyer hereby assumes and from and after the Closing Purchaser shall agrees to pay, perform and discharge when dueor perform, all as appropriate, the following liabilities, specific liabilities and obligations and commitments of Sellers Seller (the "Assumed Acquired Liabilities"), other than any Excluded Liabilities:):
(i) the liabilities and obligations of Seller arising in the regular and ordinary course of the Business that are reflected on the face of the Closing Net Asset Statement (excluding any notes or schedules thereto) in accordance with Section 1.6, but only to the extent of the amount reflected thereon;
(ii) all liabilitiesliabilities and obligations of Seller that are required to be performed or fulfilled, obligations and commitments of Sellers in whole or in part, on or after the Closing Date under the Assigned Contracts, except obligationsthat Buyer shall not assume or agree to pay, discharge or perform any liabilities or obligations under any Contracts (A) that were required to be performed or fulfilled on or prior to the Closing Date or (B) that arise out of any breach or default (including for this purpose any event which, with notice or lapse of time, or both, would constitute such a breach or default) by Seller of any provision of any Contract, including liabilities or obligations arising out of any actual failure to perform any agreement, contract, commitment or alleged breach on or lease in accordance with its terms prior to the Closing; and
(iii) the costs, up to $15,000, of the financial audit report of the Business for the five-month period ended May 31, 2002, requested by Buyer as a condition to Closing set forth in Section 5.1(g) below.
(b) Buyer is not assuming any liabilities, commitments or obligations (contingent or absolute, known or unknown and whether or not determinable as of the Closing) of Seller except for the Acquired Liabilities as specifically and expressly provided for above, whether such liabilities or obligations relate to payment, performance or otherwise, and all liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Acquired Liabilities are being retained by Sellers ofSeller (the "Retained Liabilities"), who shall remain liable therefor in accordance with the terms of this Agreement. Seller shall indemnify Buyer from all Retained Liabilities, including any Retained Liabilities created by statute or nonperformance common law, in accordance with Section 6.1 hereof. Without limiting the foregoing, all of the following shall be considered Retained Liabilities and not Acquired Liabilities for the purposes of this Agreement:
(i) all liabilities and obligations of Seller or its Affiliates under any agreements, contracts, leases or licenses to which Seller or any such Affiliate is a party on or prior to the Closing by Sellers underDate, other than (a) Contracts, and (b) obligations of Seller reflected on the face of the Closing Net Asset Statement (excluding any Assigned Contractnotes or schedules thereto);
(ii) all accounts payable obligations arising exclusively out prior to the Closing under the Contracts that are required under the terms of the operation applicable Contract to be performed by Seller or conduct of the Business its Affiliates prior to and following the Closing, and all liabilities or obligations arising from any breach or default or alleged breach or default by Seller or its Affiliates of a Contract;
(iii) all off-balance sheet liabilities listed on Schedule 1.03(a)(iii);
(ivexcept to the extent of Product warranties covered by Section 1.2(a)(i) the Working Capital Liabilities; and
(v) all other liabilitiesabove, obligations and commitments relating to any product liability, breach of contract, product warranty, product return or arising primarily out similar claim, regardless of the operation when made or conduct of the Business arising after the Closing Dateasserted, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising which arises out of or resulting from is based upon any factexpress or implied representation, circumstancewarranty, occurrence, condition, act agreement or omission existing guarantee made or occurring after the Closing Date, but not relating alleged to have been made or arising out which is imposed or asserted to be imposed by operation of law (including by reason of any fact"strict liability" or related theory of tort law), circumstancein connection with any product licensed, occurrence, condition, act leased or omission existing on or occurring prior to the Closing Date.
(b) Notwithstanding Section 1.03(a)sold by, or any other provision of this Agreement service performed by or any Ancillary Agreement, Purchaser shall not assume any of the following liabilities, obligations and commitments of Sellers (the "Excluded Liabilities"), all of which shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliates:
(i) any liability, obligation or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6-
(iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers on behalf of, Seller or nonperformance by Sellers under, any Contract (including any Assigned Contract) its Affiliates prior to the Closing, including any such claim relating to any Purchased IP and any such claim seeking recovery for consequential damages, lost revenue or income;
(iv) any liabilityfederal, obligation state, foreign or commitment of Sellers arising out of local Tax (as defined in Section 2.12(b)) (A) ), including any claimfederal, suitstate, action foreign or proceeding ("Proceeding") pending or, local Tax payable with respect to the Knowledge of Sellersbusiness, threatened as of assets (other than Buyer's Taxes accruing from and after the Closing Date with respect to the Acquired Assets), properties or operations of Seller, or its Affiliates, or (B) any actual incident to or alleged violation arising as a consequence of the negotiation or consummation by Sellers Seller or any its Affiliates of their affiliates of any Applicable Law prior to this Agreement and the Closingtransactions contemplated hereby;
(v) any liabilityliability or obligation with respect to compensation of any nature owed to any employees, obligation former employees, agents or commitment independent contractors of Sellers to Seller, whether or not employed by Buyer after the extent it relates toClosing Date, or that arises out of, any Excluded Asset, or that (A) arises out of or relates to the distribution toemployment or service provider relationship between Seller or its Affiliates and any such individuals, or ownership by, Sellers of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(viB) any account payable or accrued expense of Sellers that relates to, or that arises out of or relates to events or conditions occurring on or before the Closing Date, including any obligation to grant options or pay severance, retention or "stay" bonuses, or similar arrangements;
(vi) all liabilities and obligations of Seller under any "employee pension benefit plan" (as defined in Section 3(2) of the extent the same are not included Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by Seller or any of its Affiliates, any "employee welfare benefit plan" (as defined in Working Capital Liabilities Section 3(1) of ERISA) maintained by Seller or any of its Affiliates, and any indebtedness for borrowed money other written or guarantees thereoforal plan, agreement or arrangement maintained by Seller or any of its Affiliates involving direct or indirect compensation to employees of Seller or its Affiliates, including insurance coverage, severance benefits, disability benefits, deferred compensation, bonuses, stock options, stock purchase, phantom stock, stock appreciation or other forms of incentive compensation or post-retirement compensation of any employees of Seller or its Affiliates, including any such liabilities and obligations which arise on or before the Closing Date;
(vii) any liabilityliability or obligation of Seller or its Affiliates arising or incurred in connection with the negotiation, obligation or commitment for Taxes, whether or not accrued, assessed or currently due preparation and payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 execution of this Agreement and the transactions contemplated hereby, and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) any indebtedness for borrowed money, including any indebtedness secured by a Lien on any Acquired Assets, any liabilities arising from any guaranty, suretyship or otherwisesimilar arrangement, (A) any liabilities under any letter of credit and any liabilities under any lease of any Seller property (whether directly real, personal or mixed) which in conformity with generally accepted accounting principles ("GAAP") is or should be accounted for as a transfereecapital lease;
(ix) except as otherwise expressly set forth herein, by contract any liability or otherwise) obligation of Seller or (B) its Affiliates relating to any business, division or operations not constituting the operation Business, including any business, division or ownership operations previously sold by Seller or its Affiliates, and any liabilities or obligations arising out of the Business any disposition of such business, division or the assets for operations;
(x) any Tax period (liability or portion thereof) ending obligation of Seller arising out of any notice, claim, demand, action or proceeding based on or prior relating to the Closing Date (for purposes any actual or alleged infringement, dilution, violation or misappropriation of this clause (vi)any patent, all real copyright, trademark, trade secret or other intellectual property Taxesright of any third party including any such notice, personal property Taxes and similar ad valorem obligations levied claim, demand, action or proceeding arising out of any indemnification obligation to customers or licensees under any Contract; provided, however, that Seller shall not be obligated to indemnify Buyer with respect to the Acquired Assets for a Tax period that includes (but does not end onany Retained Liability described in this Section 1.2(b)(x) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising unless Seller had knowledge on or before the Closing Date) based upon the number of days of any such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date))alleged infringement, dilution, violation or misappropriation;
(viiixi) except as expressly provided in Section 5.08, any liability, obligation liability of Seller or commitment the Business to any Affiliate of Sellers or any of their affiliates under any Seller Benefit Plan;incurred prior to the Closing (the "Intercompany Payables"); or
(ixxii) any liabilityother liability of Seller or its Affiliates whatsoever, obligation including any liability arising out of or commitment relating to the ownership or operation of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Sellers the Acquired Assets and the Business 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)predecessor operations), whether such liabilityincluding any claims, obligation obligations or commitment relates to or arises litigation arising out of accidents, injuries or losses relating to events or conditions occurring on or prior to the Closing Date; =============================================================================== -7-
(x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement) on or prior to Closing, including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or commitment arising under any Environmental Law in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Date;
(xii) any liability, obligation or commitment arising in respect of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to before the Closing Date (including the threatened or as a result of the consummation of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed pending litigation set forth on Schedule 1.03(b)(xiv2.18 hereto).
, regardless of when made or asserted, except, in the case of this subparagraph (c) Purchaser shall acquire xii), for the Acquired Assets free Liabilities as specifically and clear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liensexpressly set forth herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Comtech Telecommunications Corp /De/)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions Purchaser is not assuming any debt, liability or obligations of this Agreement, Purchaser shall assume, effective as any of the ClosingCompanies, and from and whether known or unknown, fixed or contingent, except for the liabilities of the Companies to be paid or performed after the Closing Date under the Assumed Contracts listed in SCHEDULE 1.1(c) (the "Assumed Contracts") which are assigned by the Companies to the Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Sellers (the "Assumed Liabilities"). Except as and to the extent otherwise expressly provided in this Agreement, Purchaser does not, and shall not, assume or be deemed to assume, nor shall Purchaser discharge, be responsible for or liable with respect to any other than any Excluded Liabilities:
(i) all liabilities, obligations and commitments of Sellers under the Assigned Contracts, except obligations, liabilities or obligations of the Companies or any other person, whether arising prior to, on or after the Closing Date (collectively, the "Retained Liabilities"), including without limitation: (a) any liability or obligations of the Companies arising out of or relating to any contract or agreement not fully and effectively assigned to and specifically assumed by Purchaser pursuant to this Agreement; (b) any liability or obligations of the Companies arising out of or relating to any employee benefit (including health) plans, programs, policies or other arrangements or agreements which provide the Companies' employees with benefits, including the payment of severance pay or special bonuses, if any, to terminated employees under agreements or policies not constituting Assumed Contracts, (c) any liability or obligations of the Companies arising out of any actual litigation, claim, arbitration or alleged breach other similar proceeding relating to the Purchased Assets before the Closing Date, regardless of whether or not such litigation, claim, arbitration or other similar proceeding is pending, threatened or asserted before, on or prior to the Closing by Sellers of, or nonperformance on or prior to the Closing by Sellers under, any Assigned Contract;
(ii) all accounts payable arising exclusively out of the operation or conduct of the Business prior to and following the Closing;
(iii) all off-balance sheet liabilities listed on Schedule 1.03(a)(iii);
(iv) the Working Capital Liabilities; and
(v) all other liabilities, obligations and commitments relating to or arising primarily out of the operation or conduct of the Business arising after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, (d) any liabilities and based upon, arising out obligations of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not Companies' relating to or arising out of any factthe Excluded Assets, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing Date.
(b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary Agreement, Purchaser shall not assume any of the following liabilities, obligations and commitments of Sellers (the "Excluded Liabilities"), all of which shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliates:
(ie) any liabilityand all liabilities and obligations, obligation direct or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liabilityindirect, obligation fixed or commitment of Sellerscontingent, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6-
(iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers of, or nonperformance by Sellers under, any Contract (including any Assigned Contract) prior to the Closing;
(iv) any liability, obligation or commitment of Sellers arising out of (A) any claim, suit, action or proceeding ("Proceeding") pending or, to the Knowledge of Sellers, threatened as of the Closing Date or (B) any actual or alleged violation by Sellers or any of their affiliates of any Applicable Law prior to the Closing;
(v) any liability, obligation or commitment of Sellers to the extent it relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, or ownership by, Sellers of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(vi) any account payable or accrued expense of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included in Working Capital Liabilities and any indebtedness for borrowed money or guarantees thereof;
(vii) any liability, obligation or commitment for Taxes, whether or not accruedsuch Taxes are assessed prior to, assessed on or currently due after the Closing date and (f) accounts payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes Companies as of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date));
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Sellers 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; =============================================================================== -7-
(x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement) on or prior to Closing, including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or commitment arising under any Environmental Law in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Date;
(xii) any liability, obligation or commitment arising in respect of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result of the consummation of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv).
(c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens.
Appears in 1 contract
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of At the Closing, AAC shall assume and from and after the Closing Purchaser shall payagree to pay when due, perform and discharge when duein accordance with the terms thereof, and indemnify and hold CPI and ILCT harmless from, all of the following liabilities, obligations and commitments of Sellers (the "Assumed Liabilities"), other than any Excluded Liabilities:
CPI (i) all liabilitiesthat are shown on the Projected Balance Sheet, obligations and commitments of Sellers under the Assigned Contracts, except obligations, liabilities or obligations arising out of any actual or alleged breach on or prior to the Closing by Sellers of, or nonperformance on or prior to the Closing by Sellers under, any Assigned Contract;
(ii) all accounts payable arising exclusively out of the operation or conduct of the Business prior that are disclosed in any Schedule attached to and following the Closing;
this Agreement, (iii) all off-balance sheet liabilities listed on Schedule 1.03(a)(iii);
that arise after the Closing in connection with the Assets, including without limitation, contracts set forth in the Material Contracts List, (iv) that arise after March 29, 1997 in the Working Capital Liabilities; and
ordinary course of CPI's Business, and (v) all other liabilitiesthat is accrued vacation to CPI employees not to exceed $100,000 in the aggregate (collectively, obligations and commitments relating to or arising primarily out of the operation or conduct of the Business arising after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not relating to or arising out of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior to the Closing Date"ASSUMED LIABILITIES").
(b) Notwithstanding the foregoing provisions of Section 1.03(a2.4(a), or any other provision of this Agreement or any Ancillary Agreement, Purchaser AAC shall not assume any of the following liabilitiesor agree to perform, obligations pay or discharge, and commitments of Sellers (the "Excluded Liabilities")CPI shall remain liable for, all obligations, liabilities and commitments, fixed or contingent, of which CPI other than the Assumed Liabilities. Without limiting the foregoing, the Assumed Liabilities shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliates:
not include (i) any liability, obligation or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6-
(iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers of, or nonperformance by Sellers under, any Contract (including any Assigned Contract) prior to the Closing;
(iv) any liability, obligation or commitment of Sellers arising out of (A) any claim, suit, action or proceeding ("Proceeding") pending or, to the Knowledge of Sellers, threatened as of the Closing Date or (B) any actual or alleged violation by Sellers or any of their affiliates of any Applicable Law prior to the Closing;
(v) any liability, obligation or commitment of Sellers to the extent it relates to, or tax liabilities that arises out of, any Excluded Asset, or that arises out of the distribution to, or ownership by, Sellers of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(vi) any account payable or accrued expense of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included disclosed in Working Capital Liabilities and any indebtedness for borrowed money or guarantees thereof;
(vii) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable and, whether or not disclosed or required Schedule attached to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or CPI's operations prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date));
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Sellers 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; =============================================================================== -7-
(x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement, (ii) on costs incurred by ILCT or CPI in connection with the transactions contemplated hereby, (iii) liabilities with respect to judgments or pending or threatened litigation or causes of action which occur prior to ClosingClosing (other than warranty claims), including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xiiv) any liabilitybroker's or finder's fees or commission and the fees of CPI and ILCT's legal counsel in connection with this transaction incurred by CPI or ILCT, obligation (v) any and all debt due to ILCT, employees or commitment arising under any Environmental Law in respect affiliates of the Acquired Assets or the BusinessCPI, to the extent including sums due employees by CPI arising out of conditions existing CPI's health insurance programs that is not disclosed in any Schedule attached to this Agreement, and (vi) obligations or events occurring liabilities arising from any warranties, express or implied, with respect to any products shipped prior to Closing in excess of any warranty reserves set forth in the Final Balance Sheet. AAC shall assume all claims for product liability relating to products sold by CPI accruing on or prior to after the Closing Date;
(xii) any liability, obligation or commitment arising in respect of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result of the consummation of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv).
(c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens.
Appears in 1 contract
Samples: Asset Purchase Agreement (Applied Science & Technology Inc)
Assumption of Certain Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of the Closing, and from and after the Closing shall perform and discharge when due, all of Seller's maintenance obligations under the Assigned Contracts to the extent such obligations relate to the period from and after the Closing. For the assumption of such maintenance obligations, Seller shall pay Purchaser at the Closing, five hundred thirty thousand and two hundred and sixty dollars ($530,260) which is a pro-rata portion of all maintenance fees paid, payable or due to Seller from users of Sleuth for maintenance services under any Assigned Contract with respect to the calendar year 1999 and thereafter. The liabilities, obligations and commitments of Seller that Purchaser is assuming pursuant to Sections 1.03(a) and 1.03(b) of this Agreement are referred to herein as the "Assumed Liabilities".
(b) In addition to the liabilities assumed under Section 1.03(a) above, upon the terms and subject to the conditions of this Agreement, Purchaser shall assume, effective as of the Closing, and from and after the Closing Purchaser shall pay, perform and discharge when due, all the following liabilities, obligations and commitments of Sellers (Seller under the "Assumed Liabilities"), other than any Excluded Liabilities:
(i) all Assigned Contracts and Assigned Permits to the extent such liabilities, obligations and commitments of Sellers under the Assigned Contracts, except obligations, liabilities or obligations arising out of any actual or alleged breach on or prior relate to the Closing by Sellers of, or nonperformance on or prior to the Closing by Sellers under, any Assigned Contract;
(ii) all accounts payable arising exclusively out of the operation or conduct of the Business prior to period from and following after the Closing;
(iiic) all off-balance sheet liabilities listed on Schedule 1.03(a)(iiiExcept as expressly set forth in this Agreement, or in any other agreements executed and delivered with this Agreement (the "Ancillary Agreements");
(iv) the Working Capital Liabilities; and
(v) all other liabilities, obligations and commitments relating to or arising primarily out of the operation or conduct of the Business arising after the Closing Date, whether express, implied, liquidated, absolute, accrued, contingent or otherwise, known or unknown, and based upon, arising out of or resulting from any fact, circumstance, occurrence, condition, act or omission existing or occurring after the Closing Date, but not relating to or arising out regardless of any fact, circumstance, occurrence, condition, act or omission existing on or occurring prior disclosure to the Closing Date.
(b) Notwithstanding Section 1.03(a), or any other provision of this Agreement or any Ancillary AgreementPurchaser, Purchaser shall not assume any of the following liabilities, obligations and commitments of Sellers Seller (the "Excluded Liabilities"), all of which shall be retained and paid, performed and discharged when due by Sellers or one of their respective affiliates:
(i) any liability, obligation or commitment of Sellers not specifically set forth in Section 1.03(a);
(ii) any liability, obligation or commitment of Sellers, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising out of the operation or conduct by Sellers or any of their affiliates of any business other than the Business; =============================================================================== -6-
(iii) any liability, obligation or commitment of Sellers arising out of any actual or alleged breach by Sellers of, or nonperformance by Sellers under, any Contract (including any Assigned Contract) prior to the Closing;
(iv) any liability, obligation or commitment of Sellers arising out of (A) any claim, suit, action or proceeding ("Proceeding") pending or, to the Knowledge of Sellers, threatened as of the Closing Date or (B) any actual or alleged violation by Sellers or any of their affiliates of any Applicable Law prior to the Closing;
(v) any liability, obligation or commitment of Sellers to the extent it relates to, or that arises out of, any Excluded Asset, or that arises out of the distribution to, or ownership by, Sellers of the Excluded Assets or associated with the realization of the benefits of any Excluded Asset;
(vi) any account payable or accrued expense of Sellers that relates to, or that arises out of events occurring on or before the Closing Date, to the extent the same are not included in Working Capital Liabilities and any indebtedness for borrowed money or guarantees thereof;
(vii) any liability, obligation or commitment for Taxes, whether or not accrued, assessed or currently due and payable and, whether or not disclosed or required to be disclosed pursuant to Section 3.11 of this Agreement or otherwise, (A) of any Seller (whether directly or as a transferee, by contract or otherwise) or (B) relating to the operation or ownership of the Business or the assets for any Tax period (or portion thereof) ending on or prior to the Closing Date (for purposes of this clause (vi), all real property Taxes, personal property Taxes and similar ad valorem obligations levied with respect to the Acquired Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between Sellers, as applicable, and Purchaser (but Purchaser shall not be deemed to have assumed any such underlying tax liability arising on or before the Closing Date) based upon the number of days of such period included in the pre-Closing Tax period and the number of days of such Tax period after the Closing Date (which period shall include the Closing Date));
(viii) except as expressly provided in Section 5.08, any liability, obligation or commitment of Sellers or any of their affiliates under any Seller Benefit Plan;
(ix) any liability, obligation or commitment of Sellers that relates to, or that arises out of, services performed or products manufactured, shipped or sold by or on behalf of Sellers 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; =============================================================================== -7-
(x) except to the extent provided in Section 5.08, any liability, obligation or commitment of Sellers that relates to, or that arises out of, the termination of the employment with Sellers of any employee or former employee of the Business (including as a result of the transactions contemplated by this Agreement) on or prior to Closing, including, without limitation, any salary, severance, bonuses, vacation, stock options or other employee benefits, rights or obligations under any Seller Benefit Plan;
(xi) any liability, obligation or commitment arising under any Environmental Law in respect of the Acquired Assets or the Business, to the extent arising out of conditions existing or events occurring on or prior to the Closing Date;
(xii) any liability, obligation or commitment arising in respect of any employees or former employees of the Sellers in the Business (or any beneficiaries associated with such employees and former employees), to the extent arising out of conditions existing or events occurring on or prior to the Closing Date or as a result of the consummation of the Acquisition;
(xiii) any liability, obligation or commitment of Sellers to any of their respective affiliates; and
(xiv) any liability, obligation or commitment (the Seller. The term "Excluded Debt") pursuant to any Contract listed on Schedule 1.03(b)(xiv).
(c) Purchaser shall acquire the Acquired Assets free and clear of all liabilities, obligations and commitments of Sellers, other than the Assumed Liabilities, and free and clear of all Liens, other than Permitted Liens.Liability" means:
Appears in 1 contract
