Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include: (a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker; (b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby; (c) any Liabilities of the Seller for Intercompany Accounts; (d) any Liabilities of the Seller for asset retirement obligations related to railcars; (e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing; (f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing; (g) all Liabilities arising out of or relating to or associated with the Excluded Assets; (h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date; (i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C; (j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date; (k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions; (l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and (m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Green Plains Inc.), Asset Purchase Agreement (Green Plains Inc.)
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.3 or any other provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only of any kind or nature whatsoever other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller for costs and expenses arising out of or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(cb) any Liabilities of the Seller Liability for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax period Period; or (ii) other Taxes of Seller (or portion thereofany stockholder or Affiliate of Seller) ending on of any kind or before the Closing Date; description (iiiincluding any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) Taxes that arise becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the consummation Excluded Assets (unless and until such time as an Excluded Asset, with respect to the Liabilities relating to or arising out of such Excluded Asset, becomes a Purchased Asset pursuant to the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions terms of this Agreement; or );
(ivd) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date Liabilities in respect of any Person imposed on Buyer as a transferee pending or successorthreatened Action arising out of, by contract relating to or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 otherwise in respect of the operation of the Business or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior the Purchased Assets to the Closing Date or by agreements entered into or transactions entered into extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller prior to the Closing;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller prior to the Closing;
(g) any Liabilities of Seller arising under or in connection with any benefit plan providing benefits to any present or former employee of Seller;
(h) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, employee deferred compensation including stock option plans, grants and agreements, severance, retention, termination or other payments;
(i) all Liabilities trade accounts payable of Seller and its Affiliates with respect to Employees as provided in Exhibit CSeller;
(j) All any Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose Business relating or arising from the operation of the Ethanol Plant unfulfilled commitments, quotations, purchase orders, customer orders or the Business prior to the Closing Date;
work orders that (ki) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition do not constitute part of the Purchased Assets, Assets issued by the Ethanol Plant Business’ customers to Seller on or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.; or
Appears in 2 contracts
Excluded Liabilities. The parties acknowledge that Other than the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities, and Seller expressly acknowledges that Buyer is will not a legal successor be liable for any obligations or liabilities of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any kind or nature whatsoeverwhether actual or contingent, whether matured or unmatured, liquidated or unliquidated, known or unknown, absolute related to the Division Business or contingentthe Acquired Assets, and whether presently to circumstances or events existing on or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of before the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this AgreementClosing Date, including, without limitation, : - any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating liability or obligation to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth or in this Agreement, all Indebtedness, Contracts and Liabilities respect of any kindformer or existing shareholder, character officer, director, employee or description (agent of Seller whether known or unknownunder any plan, accruedpolicy, absoluteagreement, contingent law, charter provision, or otherwise) relating to ; - any liability or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities obligation of Seller in respect of any Income Tax; - any claim, litigation, arbitration or other proceeding, whether based on negligence, breach of warranty, breach of contract, strict liability, enterprise liability or otherwise, and whether now pending or threatened; - any liability or obligation for violation by Seller of its Affiliates under the Assumed Contracts to the extent required to be paid any Applicable Law; - any liability or performed prior to Closing;
(g) all Liabilities obligation arising out of or relating to products or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes services of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Businessextent manufactured, the Assets sold or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into rendered on or prior to the Closing Date;
(i) all Liabilities ; - except as otherwise provided herein, any liability or obligation arising as a result of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the Seller's operation of the Ethanol Plant or the Business prior to any continuing business following the Closing Date;
; - any liability or obligation for finished goods inventory returns for a period of ninety (k90) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to days following the Closing Date. Seller will timely and fully discharge all of its debts, obligations and liabilities as they come due before and after Closing Date.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale of Assets, Purchase and Sale Agreement (Zila Inc)
Excluded Liabilities. The parties acknowledge that Other than the transactions contemplated by this Agreement involve a purchase Assumed Liabilities, Buyer shall not assume any Liabilities of the Sellers or their Affiliates and sale all Liabilities of assets, Sellers and that Buyer is their Affiliates not a legal successor of Seller and is assuming only expressly included among the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The .” Without any limitation of the foregoing, Buyer shall not assume and shall not be responsible or liable for, and Sellers shall perform and discharge as and when due, or cause to be performed or discharged as and when due, any and all of the following Excluded Liabilities includeLiabilities:
(a) any Liabilities of the Seller for costs and obligation to pay any compensation, expenses incurred or fees (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerlitigation expenses or costs, attorney fees, administrative costs, judgments or awards, court-assessed sanctions or costs, taxable costs in litigation, witness fees, brokerage fees, overhead, consultant or vendor fees, compensation payable to inventors or amounts paid or payable to the PTO or any foreign patent offices) relating to the Assigned Patents and (i) incurred or accrued by Sellers prior to the Closing or (ii) otherwise arising with respect to the Assigned Patents prior to the Closing;
(b) any all Liabilities of the Seller arising from or in connection with or relating to its performance under this Agreement and the Transaction Documents and Excluded Assets (including where such Liabilities or obligations may be otherwise borne by Buyer by operation of Law) or, 4 except as may otherwise be expressly provided herein, the transactions contemplated hereby and therebyoperation or conduct of any business by Sellers at any time after the Closing;
(c) all Losses arising from or in connection with or relating to any Liabilities of Action or Proceeding commenced prior to the Seller for Intercompany AccountsClosing arising from or in connection with or relating to the Acquired Assets and all Losses arising from or in connection with or relating to any Action or Proceeding commenced prior to the Sold Shares Closing arising from or in connection with or relating to the Sold Shares or the Sold Shares Documents;
(d) any Liabilities of the Seller for asset retirement or obligations related under any Assumed Contract not assumed by Buyer pursuant to railcarsSection 1.5(a);
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description Taxes (whether known or unknown, accrued, absolute, contingent or otherwisei) relating to to, pertaining to, or arising out of of, the ownership Acquired Assets for any pre-Closing Tax period or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to of the Business, the Assets or the Assumed Liabilities Sellers for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations ofperiod, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract contract, or pursuant to any Law otherwise;
(includingf) except as provided in Section 1.1, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) all Liabilities with respect to any current or former employee, director, consultant, independent contractor or other service provider of Sellers or any of their respective Affiliates, all Liabilities of Sellers under any employee plan or relationships existing on benefits plan, and all Liabilities of Sellers under any or Law or Order with respect to terminations of employees;
(g) any Liability arising from or in connection with or relating to (i) the Acquired Assets prior to the Closing Date Closing, or by agreements entered into (ii) Assets, properties, rights, Contracts, claims and other interests, wherever located, whether tangible or transactions entered into on intangible, real, personal or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in mixed, that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500are not Acquired Assets; and
(mh) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateBulk Sales Claim.
Appears in 2 contracts
Samples: Asset Purchase Agreement (RPX Corp), Asset Purchase Agreement (RPX Corp)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities do not include, and the Purchaser shall not assume and shall not be responsible to pay, perform, satisfy or discharge, any Liabilities that Buyer is are not a legal successor of Seller and is assuming only Assumed Liabilities, including the Assumed Liabilities and not any other following Liabilities of the Seller or 4 any of and its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such Subsidiaries other liabilities and obligations shall be retained by and remain liabilities and obligations of than the Seller and/or its Affiliates, as applicable Transferred Entities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:):
(ai) any all Liabilities of the Seller for costs and expenses incurred its Subsidiaries (or to be incurredother than Liabilities of the Transferred Entities) for services performed by its legalTaxes, financial, accounting and investment banking advisors other than the Assumed Taxes or Taxes reflected or accounted for in connection with the transactions contemplated by this AgreementClosing Net Working Capital, including, without limitation, any broker’s fees for the avoidance of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreementdoubt, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities Taxes arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with in respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute by this Agreement to the extent the amount of such Taxes, together with the Employee Costs Amount and the amount of the other Transaction Expenses, exceeds the Cap;
(ii) all Indebtedness (other than, to the extent primarily related to the Business or the Purchased Assets, Indebtedness of the types specified in clauses (b) and (d) of the definition of Indebtedness);
(iii) all Excluded HR Liabilities (without prejudice to the Purchaser’s obligations of, and are payable by, under this Agreement with respect to payment of the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or Employee Costs Amount);
(iv) all Taxes attributable Liabilities in respect of the Employee Costs Amount and the Transaction Expenses to the extent the aggregate amount of such Liabilities exceeds the Cap;
(v) the Seller’s and its Subsidiaries’ obligations under this Agreement and the Ancillary Agreements;
(vi) all Liabilities arising from or relating to any Tax period (Action brought by or portion thereof) ending on or before the Closing Date behalf of any Person imposed on Buyer stockholder of the Seller or the SEC, as a transferee the case may be, against the Seller with respect to books and records demands, any disclosures to or successorfilings with the SEC made by the Seller (other than Liabilities arising out of any information supplied by the Purchaser or any of its Affiliates (including for this purpose any Vintage Person), any breach or alleged breach of fiduciary duties by contract the board of directors of the Seller, Rule 10b-5 promulgated under the Exchange Act or any other similar securities laws or stockholder Action; and
(vii) all Liabilities arising under or pursuant to any Law (includingTransferred Contract, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to other than the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateAssumed Contract Liabilities.
Appears in 2 contracts
Samples: Equity and Asset Purchase Agreement (Liberty Tax, Inc.), Equity and Asset Purchase Agreement (Sears Hometown & Outlet Stores, Inc.)
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.03 or any other provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform, or discharge any Liabilities of Seller and is assuming only of any kind or nature whatsoever other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Seller shall pay and satisfy in due course all Excluded Liabilities includethat Seller is obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
(a) any Liabilities all obligations related to accounts payable as of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing Date;
(b) any Liabilities of Seller arising or incurred in connection with the Seller relating to its negotiation, preparation, investigation, and performance under of this Agreement and Agreement, the Transaction Documents Ancillary Documents, and the transactions contemplated hereby and thereby, including fees and expenses of Seller’s counsel, accountants, consultants, and advisers;
(c) any Liability for (i) Taxes of Seller or Taxes relating to the Business, the Purchased Assets, or the Assumed Liabilities for any Pre-Closing Tax Period, or (ii) other Taxes of the Seller of any kind or description (including any Liability for Intercompany AccountsTaxes of Seller that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(d) any Liabilities of to the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) extent relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Excluded Assets, including Environmental Claims and Liabilities of Seller or any of its Affiliates under the Assumed Contracts Environmental Laws to the extent required related to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(he) all any Liabilities with (whether arising before or after the Closing) in respect to (i) Taxes of Seller (any pending or any stockholder memberthreatened Action arising out of, relating to, or Affiliate otherwise in respect of Seller); (ii) Taxes relating the ownership or operation of the Business or the Purchased Assets to the Business, the Assets extent such Action relates to such ownership or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into operation on or prior to the Closing Date;
(f) any Liabilities of Seller, whether arising before or after the Closing, under or in connection with the issues raised, considered, decided, or appealed from (x) RCA Order No. U-16-094(9)/U-17-008(13) and Order No. U-16-094(10)/U-17-008(14), (y) Case No. 3AN-14-06125CI, and (z) Docket No. U-18-102(1), but in each such case only to the extent that (i) all such Liabilities relate to ownership or operation of the Business or the Purchased Assets on or prior to the Closing Date and (ii) any related Loss is not recoverable in rates by Buyer;
(g) any Liability of Seller or similar claim against Seller for injury prior to the Closing to a Person or property, including workers’ compensation claims;
(h) any Liabilities of Seller arising, whether before or after the Closing, under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller in connection with employment with Seller other than Accrued Leave;
(i) any Liabilities relating to any payroll or other compensation obligations incurred and its Affiliates required to be paid prior to the Closing, the failure by Seller to hire any individual, the employment or services (or termination by Seller of the employment or services) of any individual, including Retention Agreements, wages, COBRA coverage, compensation, bonuses, benefits, accrued vacation, severance, retention, termination payments, affirmative action, personal injury, discrimination, harassment, retaliation, wrongful discharge, unfair labor practices, or constructive termination by Seller of any individual, or any similar or related claim or cause of action attributable to any actions or inactions by Seller, in each case prior to the Closing Date, with respect to Employees as provided in Exhibit Cthe Transferred Employees, independent contractors, applicants, and any other individuals who are determined by a court or by a Governmental Authority to have been applicants or employees of Seller;
(j) All any Liabilities related to the Business which constitute intercompany payables or intergovernmental charges owing to Seller;
(k) any Liabilities of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders, or work orders that (i) do not constitute part of the Purchased Assets or (ii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(l) any Liabilities to indemnify, reimburse, or advance amounts to any present or former official, manager, employee, or agent of Seller for or in connection with any event or circumstance occurring while such individual was an official, manager, employee, or agent of Seller;
(m) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) that are not validly and its Affiliates related effectively assigned to the Green Shift License Buyer pursuant to this Agreement or (ii) to the extent such Liabilities arose from arise out of or relate to a breach by Seller of such Contracts prior to the operation Closing;
(n) any Liabilities associated with debt, revenue bonds, commercial paper, loans, or credit facilities of the Ethanol Plant Seller or the Business Business;
(o) any Liabilities, other than Assumed Environmental Liabilities, arising out of, in respect of, or in connection with the failure by Seller to comply with any Law or Governmental Order;
(p) fines or penalties owing to any Governmental Authority for events to the extent occurring or arising prior to the Closing Date;
(kq) All Liabilities any Liability of Seller and their respective Affiliates related arising from the violation, breach, or default by Seller, prior to Syngenta/ADM Actionsthe Closing, of any Assumed Liability or Intellectual Property Assets included in the Purchased Assets;
(lr) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, any Liability arising out under any collective bargaining agreement of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligationsSeller, including any products liability for defective or off-spec Inventories sold to Third Parties and all obligations incurred under the IBEW Collective Bargaining Agreement prior to the Closing Date., including pension/retirement obligations under the Alaska Electrical Pension Fund regarding accruals earned prior to Closing;
(s) any Liability of Seller or ML&P for payments in lieu of taxes, including pursuant to AMC 26.10.025;
(t) any other Liability of Seller accruing or arising and required to be performed prior to the Closing;
(u) any Environmental Claims and Liabilities under Environmental Laws, and Losses arising from environmental conditions at the Purchased Assets, as of the Closing Date other than the Assumed Environmental Liabilities; and
(v) any other Liabilities not expressly assumed by Buyer pursuant to Section
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsPurchaser shall not assume or agree to pay, and that Buyer is not a legal successor of Seller and is assuming only satisfy, perform or otherwise discharge any claims, liabilities, indebtedness, obligations or expenses other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities includeWithout limiting the generality of the foregoing, the Purchaser does not assume or agree to pay, satisfy, perform or otherwise discharge any of the following claims, liabilities, indebtedness, obligations or expenses and the Purchaser shall have no liability for or obligation in respect of:
(a) any Liabilities of the Seller for costs Sellers’ professional fees and expenses incurred (or to be incurred) for services performed by its legaladvisers, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, including without limitation, any broker’s fees advisers retained pursuant to an order of Seller’s brokerthe Bankruptcy Court except to the extent otherwise provided for in this Agreement;
(b) obligations, liabilities or amounts payable to any Liabilities security holder of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyany Seller;
(c) general unsecured claims or any Liabilities of the Seller for Intercompany Accountsother liability not expressly assumed under this Agreement;
(d) any Liabilities all liabilities of the Seller Sellers for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) taxable periods ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor(“Pre-Closing Periods”) and, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing any period that begins on or prior to before and that ends after the Closing Date or by agreements entered into or transactions entered into (a “Straddle Period”), the portion of such Straddle Period deemed to end on or prior to and include the Closing Date;
(e) any environmental liabilities of Sellers, including without limitation, any liabilities involving:
(i) all Liabilities any violation of Seller and its Affiliates with respect or alleged violation, or non-compliance with, Environmental Laws or permits, licenses or authorizations issued pursuant to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business applicable Environmental Laws prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated , with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related respect to the ownership, possessionlease, usemaintenance, construction, modification or operation or of the Acquired Assets, except where, as a result of the transfer of a permit to Purchaser, Purchaser is obligated to assume such liabilities as a condition of said transfer as a matter of applicable Environmental Law;
(ii) loss of life, injury to persons or property, natural resource damages, or investigation or remediation obligations, arising from the Purchased Assetsdischarge or release of Hazardous Substances prior to the Closing Date, at or migrating or emitted or discharged from the Ethanol Plant Acquired Assets or from the Business before properties at which the ClosingAcquired Assets are located; provided, including Liabilities for personal that this exclusion shall not apply to any investigation or remediation that may be required after the Closing Date in connection with the sale of the assets owned by Lafayette Energy Partners, L.P. if the current transaction triggers an obligation to comply with ISRA;
(iii) loss of life, injury to persons or death property, natural resource damages, or damage to property of investigation or remediation obligations, arising from the storage, transportation, treatment, disposal, discharge recycling or release, at any Third Party attributable to off-site location, or arising out from the arrangement for such activities, prior to the Closing Date, of Hazardous Substances generated in connection with the ownership or operation of the Purchased Acquired Assets;
(iv) without limiting the foregoing, the Ethanol Plant or the Business before the Closing and any liabilities and arising from the allegation by the State of Illinois asserting that Upper Rock Energy Partners LLC violated applicable Environmental Law by installing a generating unit at the Upper Rock County Landfill without a permit; and
(v) without limiting the foregoing, any fines, penalties or other costs that may be imposed due to any failure (whether by Sellers or predecessor owners or operators) to comply with ISRA with respect to prior transactions involving the assets currently owned by Lafayette Energy Partners, L.P.;
(f) any liability relating to any Section 29 tax credit indemnification obligations, including ;
(g) any products liability for defective relating to any Excluded Asset; and
(h) any liability listed or off-spec Inventories sold to Third Parties prior to the Closing Datedescribed on Schedule 1.5.
Appears in 2 contracts
Samples: Asset Purchase Agreement (U S Energy Systems Inc), Asset Purchase Agreement (Silver Point Capital L.P.)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer Sub is not a legal successor assuming or agreeing to pay or -------------------- perform any liabilities of Seller and is assuming only Trustee or any Principal other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly being assumed by Buyer hereunder being herein referred to as the “"Excluded Liabilities”"). The Without limiting the foregoing, the Excluded Liabilities includeshall including the following:
(a) Any taxes (including income or capital gains tax, any Liabilities duty, levy or charge, any goods and service tax or any amount in the nature of any of these items) of Trustee, the Seller for costs and expenses incurred (Unitholder or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors Xxxxx arising before the Closing or arising in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerAgreement other than stamp duty in accordance with Section 10.5;
(b) All brokerage commissions, finder's fees or similar fees or commissions, any Liabilities of the Seller relating to its performance under accounting, legal and other professional fees, payable in connection with this Agreement and the Transaction Documents and or any of the transactions contemplated hereby and therebyto any broker, finder, agent, financial advisor accounts, attorneys, or other representatives, acting or having acted on behalf of or employed by Trustee or the Principals;
(c) Any liability relating to the withholding obligations of Trustee or that Principals and any Liabilities other taxes (including income or capital gains tax, any duty, levy or charge, any goods and service tax or any amount in the nature of any of these items) resulting from the Seller for Intercompany Accounts;exercise, redemption or other disposition of any options to purchase shares in or securities of Trustee or the Unitholder; and
(d) Any liability to any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or person arising out of the any ownership interest in Trustee or operation Unitholder. All of the Purchased Assets Excluded Liabilities will be the sole responsibility and obligation of Trustee (or the conduct Principals, as appropriate). Trustee (or the Principals, as appropriate) must pay, perform and discharge all of the Business prior Excluded Liabilities when due in accordance with their respective terms and conditions and in a commercially reasonable manner designed to further the Closing;
(f) goodwill and reputation of the Business. Trustee and the Principals indemnify and must keep indemnified Sub and DoveBid in respect of any and all Liabilities of Seller claims, costs, expenses or any of its Affiliates under the Assumed Contracts to the extent required liabilities suffered or to be paid or performed prior suffered due to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out a breach by Trustee of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datepreceding paragraph.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Dovebid Inc), Asset Purchase Agreement (Dovebid Inc)
Excluded Liabilities. The parties acknowledge that Notwithstanding any other provision of this -------------------- Agreement to the transactions contemplated by this Agreement involve a purchase contrary, other than the Assumed Liabilities, the Purchaser shall not assume and sale of assetsshall not be liable for, and that Buyer is not a legal successor Seller shall retain and remain solely liable for and obligated to discharge and indemnify and hold Purchaser harmless for, all of Seller the debts, expenses, contracts, agreements, commitments, obligations and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverwhatsoever of Seller, the Business or the Purchased Assets (the "Excluded Liabilities"), whether known or unknown, absolute accrued or not accrued, fixed or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of including the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities includefollowing:
(a) any all Liabilities of under Contracts, other than those first arising under the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with Assumed Contracts after the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing Date;
(b) except as otherwise provided in Section 7.3, any Liability for Taxes attributable to or imposed upon Seller or any Affiliates of Seller (other than Liabilities for Taxes attributable to the ownership or use of the Seller relating Purchased Assets in the Post-Closing Tax Period), or attributable to its performance under this Agreement and or imposed upon the Transaction Documents and Business or the transactions contemplated hereby and therebyPurchased Assets for the Pre-Closing Tax Period;
(c) any Liabilities Liability for or in respect of the any loan, other indebtedness for money borrowed, or account payable of Seller for Intercompany Accountsor any Affiliates of Seller;
(d) all claims against Seller or any Liabilities Affiliates of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this AgreementSeller, all Indebtedness, Contracts and or any other Liabilities of any kind, character kind or description (whether known or unknown, accrued, absolute, contingent or otherwise) nature whatsoever relating to the Business or the Purchased Assets, arising out of facts, events or circumstances occurring prior to the ownership Closing, regardless of whether such claim or operation of Liability shall arise or become known before, on or after the Closing, including any Liability pursuant to pending or threatened litigation relating to the Purchased Assets or the conduct of the Business Business, any Liabilities relating to inter-company or trade payables or any Liabilities related to Products produced, delivered or sold on or prior to the Closing;
(e) any Liability of Seller attributable to any Employee Benefit Plan or Benefit Arrangement maintained by Seller or any Affiliates of Seller;
(f) all Liabilities any Liability for wages or salary or for making payments of any kind (including as a result of this sale of Purchased Assets or as a result of the termination by Seller of employment of employees of Seller, or other claims arising out of the terms and conditions of employment with Seller, or for vacation, bonus, severance pay, retirement, stock options, automobile assistance or otherwise) to employees of Seller or any in respect of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closingpayroll taxes for employees of Seller;
(g) all Liabilities arising out of or relating to or associated with the Excluded AssetsEnvironmental Liabilities;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing DateExcluded Assets; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;and
(i) all Liabilities any Liability of Seller incurred in connection with the making or performance of this Agreement and its Affiliates with respect to Employees the transactions contemplated hereby, except as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSection 7.3(d).
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities, and that Buyer is shall not a legal successor assume, or in any way be liable or responsible for, any direct or indirect liabilities, obligations, or debts of Seller and is assuming only or the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates Business of any nature whatsoevertype or nature, whether fixed or unfixed, known or unknown, absolute accrued or contingentunaccrued, and whether presently existing asserted or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliatesunasserted, as applicable xxxxxx or inchoate, liquidated or unliquidated, secured or unsecured, contingent or otherwise (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as collectively, the “Excluded Liabilities”), including the liabilities listed below, that are based on acts or omissions of Seller or any Affiliate of Seller occurring on, before or after the Effective Date. The Seller shall retain all Excluded Liabilities includeand agrees to pay or discharge when due all of the Excluded Liabilities. Without limiting the foregoing, the Excluded Liabilities shall include all of the following:
(a) any Liabilities of the Seller for costs and expenses incurred (obligation or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) liability relating to or arising out of the Excluded Assets;
(b) any obligation or liability relating to or arising out of the Wachovia Debt;
(c) any product warranty or product liability, negligence, or other claim of any nature in respect of products or services sold, manufactured, installed, or provided by or for Seller prior to the Effective Date;
(d) any obligation or liability for Taxes that have been or may be incurred as a result of Seller’s operation of the Business or ownership of the Purchased Assets on or before the Effective Date, including (i) any liability for deferred Taxes of any nature; and (ii) any Taxes of any Person for which Seller is liable, arising out of any tax sharing agreement as a transferee or successor, or by reason of membership in any affiliated group of corporations;
(e) any Environmental Liabilities arising or related to the operation of Seller and the Business, or arising or relating to the acts or omissions of any Person or Authority, or from any conditions, whether known or unknown, naturally occurring or otherwise, or any events, facts, or circumstances whatsoever, in each case first occurring before the Effective Date;
(f) any obligation or liability arising under any Contract that (i) is not transferred to Buyer as part of the Purchased Assets or (ii) relates to any breach or default (or an event which might, with the conduct passing of time or the giving of notice or both, constitute a default) under any Contract or to any goods or services provided or to be provided by Seller under any such Contract arising out of or relating to periods prior to the Effective Date;
(g) any obligation or liability of Seller to indemnify its officers, directors, employees, or agents;
(h) any obligation or liability of the Business prior to the Closingany Affiliate or Related Party;
(fi) all Liabilities any obligation or liability relating to any Benefit Plan, pension or retirement benefits (including any 401(k) plan) and health care or other employee benefits or employee stock option plans for employees or former employees;
(j) any obligation or liability under any employment, severance, retention, termination, or similar agreement with any employee of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to ClosingAffiliates;
(gk) all Liabilities any obligation or liability arising out of or related to any employee of Seller, including employee grievances, arising out of or relating to or associated with periods prior to the Excluded AssetsEffective Date;
(hl) all Liabilities with respect to (i) Taxes any obligation or liability of Seller (to distribute to its member or otherwise to apply all or any stockholder memberpart of the consideration received under this Agreement;
(m) any obligation or liability of Seller to the extent that Seller has the right to be indemnified by an insurer or other third party under the policies in force immediately preceding the Effective Date;
(n) any obligation or liability of Seller arising out of existing or pending claims, actions, suits, proceedings (arbitration or otherwise), litigations or investigations arising out of, or Affiliate of Seller); (ii) Taxes relating to the Businessto, the Assets an occurrence or the Assumed Liabilities for any Tax period (or portion thereof) ending on or event happening before the Closing Effective Date; , whether or not set forth in the Disclosure Schedule;
(iiio) Taxes that arise any obligation or liability arising out of the consummation any “bulk sale” type of Law or successor liability protection Law, including any Law regarding notice of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable be given to any Tax period Authority or imposing Damages on Buyer or Buyer Parent or Liens on the Purchased Assets if such notice is not given;
(p) any obligation or portion thereof) ending on liability arising under the WARN Act or any similar Law, to the extent caused by any action of Seller before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Effective Date;
(iq) all Liabilities any obligation or liability (including any fees, expenses, or other payments) of Seller and its Affiliates or Owner to any brokers, financial advisors, or comparable other Persons retained or employed by any of them in connection with respect to Employees as provided in Exhibit Cthe Agreement or the transactions contemplated hereunder;
(jr) All Liabilities any obligation or liability of Seller for infringement associated with the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation use of the Ethanol Plant or the Business any trademarks prior to the Closing Effective Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(ms) All Liabilities accruingall capital lease obligations of Seller and other outstanding debt of Seller, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateexcept as set forth on Schedule 2.5(r).
Appears in 1 contract
Excluded Liabilities. The parties specifically acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor assuming any Liability of Seller and is assuming only Seller, except the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverLiabilities, whether known related to the Acquired Assets or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable otherwise (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The , which Excluded Liabilities include:
: (a) other than Product Liabilities, any such Liabilities arising at any time (including after the Closing) from the ownership, use or exploitation of the Acquired Assets by Seller for costs and expenses incurred (or its Affiliates on or prior to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
Closing; (b) any Liabilities of associated with, or arising under, the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
Excluded Assets; (c) any Liabilities of patent and other legal costs and fees relating to the Seller for Intercompany Accounts;
Acquired Intellectual Property that have become due or accrue, arise from or relate to periods prior to Closing; (d) any Liabilities of the Seller Liability for asset retirement obligations related to railcars;
Seller’s Indebtedness; (e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to Liability for (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes or, with respect to a taxable period or portion thereof ending prior to Closing, relating to the BusinessAcquired Assets, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iiiii) Taxes that arise out of the consummation of the transactions Transaction contemplated hereby hereby, or (iii) other Taxes of Seller (or any stockholder or Affiliate of Seller) of any kind or description, including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of transferee or successor liability or otherwise by operation of contract or Law; (f) any Liability for Seller Transaction Expenses; (g) any and all Liabilities arising under, or in connection with, those items set forth on Schedule 2.5; (h) Liabilities arising under any Contracts to which constitute obligations ofSeller or any Affiliate thereof is or was a party or otherwise bound, and are payable by, including in respect of the Seller, whether such Taxes arise by Law performance or as agreed to by the parties hereto under Section 8.4(a) non-performance thereunder that is or other provisions of this Agreementwas required thereunder; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all any Liabilities of Seller and its Affiliates with respect to Employees as provided arising under, or in Exhibit C;
(j) All Liabilities connection with, Seller’s practice under the Granted Licenses, including the making, using or selling of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant Nalmefene Implant or the Business prior to the Closing Date;
(k) All Liabilities of HIV Implant, whether by Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateits sublicensees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Titan Pharmaceuticals Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding anything in Section 1.2(b) or in any other provision of this Agreement involve a purchase and sale of assetsor any document, and that Buyer certificate or instrument delivered pursuant to or in connection with this Agreement to the contrary, except for the Transferred Liabilities: (i), Acquisition Sub is not a legal successor of Seller and is assuming only the Assumed Liabilities and not or agreeing to pay or discharge any other Liabilities of the Equity Seller or 4 its Affiliates and (ii) Acquisition Sub is not assuming or agreeing to pay or discharge any Liabilities of the Asset Seller for any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable following (all such liabilities and obligations Liabilities not expressly being assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:):
(ai) any Liabilities Indebtedness of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Asset Seller or any of its Affiliates under (other than the Assumed Contracts Company Indebtedness specifically assumed pursuant to the extent required to be paid or performed prior to Closingthis Agreement);
(gii) all Liabilities arising out of or any Liability relating to or associated with the arising under any Excluded AssetsAsset;
(hiii) all Liabilities any Liability set forth on Schedule 1.2(c)(iii);
(iv) any Liability relating to or arising from any current or pending Action against any of the Companies or the Sellers related to the operation of the Business;
(v) any Liability relating to or arising from any of the matters listed on Schedule 3.14(a), Schedule 3.14(b), Schedule 3.15(a)(i), or Schedule 3.15(a)(ii) or any matter which, if it existed prior to the Effective Date, would constitute an exception to the representations and warranties contained in Sections 3.14, 3.15, 4.4 or 4.5.
(vi) (A) any Liability for Taxes arising as a result of or with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets any Company or the Assumed Liabilities for Transferred Assets with respect to any Tax taxable period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) thereof ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor(for this purpose, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing Taxes imposed on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to a periodic basis for a period that includes, but does not end on, the Closing Date, such Taxes shall be allocated ratably on a daily basis to the extent not based on income, receipts or expenses, and to the extent based on income, receipts or expenses, shall be allocated based on a closing of the books method as of the close of business on the Closing Date), (B) any Liability for Taxes that will arise as a result of the transactions contemplated hereby, and including with respect to the sale and purchase of the Equity Interests, and (C) any Liability for Taxes of the Equity Seller or the Asset Seller;
(ivii) all Liabilities of any Liability for any intercompany accounts payable (including trade accounts payable), or other loan, Contract or advance by the Asset Seller and or its Affiliates with respect to Employees as provided in Exhibit Cany Company;
(jviii) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500any Transaction Expenses; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Other than the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities, and that Buyer is not a legal successor assuming any liability or obligation of Seller and is assuming only or the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates Selling Person of any nature whatsoevernature, whether known absolute, accrued, contingent, liquidated or unknown, absolute or contingentotherwise, and whether presently existing due or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliatesto become due, as applicable asserted or unasserted, known or unknown (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the collectively, “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, those Liabilities set forth below (collectively, the “Excluded Liabilities”):
(a) Liabilities in respect of any broker’s fees of Seller’s brokerthe Excluded Assets;
(b) Liabilities, including any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this AgreementProceeding or other third Person claim, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of from the ownership activities or operation of the Purchased Assets Business with respect to any period of time (or the conduct of the Business portion thereof) occurring prior to the Closing;
(fc) all Liabilities relating to Indebtedness or intercompany payables of Seller;
(d) Liabilities relating to loans or payables by Seller to the Selling Person or other Liabilities of Seller to the Selling Person;
(e) Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid direct or performed prior to Closing;
(gindirect owner(s) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (for any taxable period, whether assessed before or any stockholder member, or Affiliate of Seller)after the Closing Date; (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of arising in connection with the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iviii) all unpaid Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any other Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, under Treasury Regulations Regulation Section 1.1502-6 (or comparable federal, any similar provision of state, local or foreign Law) or as a successor or transferee by contract or otherwise; (iv) payments to any Person under any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or similar agreement with respect to Taxes; or (v) any other Taxes for which Seller or the Selling Person is responsible under Section 4.4 or Section 4.5;
(f) Liabilities related to Seller’s or relationships existing on the Selling Person’s transaction fees and expenses contemplated in Section 4.2 or prior to otherwise;
(g) any undisclosed Liability;
(h) Liabilities incurred other than in the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Dateordinary course of Seller’s business, consistent with past practice;
(i) all Liabilities of Seller and its Affiliates with respect related to Employees as provided in Exhibit Cany Employee Benefit Plans;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business premiums for officer’s life insurance policies that are in place immediately prior to the Closing Date;
(k) All all Liabilities for breach of Seller and their respective Affiliates related warranty (whether covered by insurance or not) with respect to Syngenta/ADM Actionsservices rendered prior to the Closing Date;
(l) All Liabilities associated relating to any current or former Staff Employee, Temporary Personnel or Billable Staffing Independent Contractor or current or former group of Staff Employees, Temporary Personnel or Billable Staffing Independent Contractors, including any change of control or severance Liabilities, except to the extent accrued for as current Liabilities in Adjusted Net Working Capital;
(m) Liabilities related to any Real Property, except any Liabilities of Seller specifically assumed pursuant to and in accordance with the matters described in that certain Consent Agreement and Final OrderLease Assignment Agreements or the Nashville Lease Agreement;
(n) Liabilities of Zycron Latin America, Green Plains Zycron Memphis, Inc., respondentZycron Europe Limited and International Consulting Enterprises, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500LLC; and
(mo) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateother Liability that is not an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Except for Assumed Liabilities, the transactions contemplated by this Agreement involve a purchase and sale of assetsBuyer will not, and that Buyer is does not a legal successor of Seller and is assuming only assume, agree to perform or discharge, indemnify the Assumed Liabilities and not Sellers against or otherwise have any other Liabilities responsibility for any liabilities, costs or expenses, claims or losses of the Seller or 4 any of its Affiliates of any nature whatsoeverSellers (collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include, including the following:
(a) any Liabilities of the a Seller for costs and expenses or relating to any Taxes relating to the Business or the Purchased Assets which are accrued or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with before the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing;
(b) with respect to any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreementlitigation, all Indebtednessaction or proceeding, Contracts and Liabilities of any kindwhether or not now pending or threatened, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid based on events occurring or performed prior to Closing;
(g) all Liabilities arising out a state of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships facts existing on or prior to the Closing, whether or not either Seller has been notified of any existing or potential claims with respect to products sold or services rendered by the Seller prior to the Closing including, for greater certainty, the Litigation;
(c) the conduct of the Business and the operation of the Purchased Assets prior to the date of Closing;
(d) relating to any assignable Benefit Plan accruing before, on or after the Closing Date in respect of any employee who is not a Hired Employee and any disability relating to any assignable Benefit Plan accruing from or being determined by agreements entered into or transactions entered into on or reference to any period prior to the Closing Date;
(ie) all Liabilities any Liability accruing before or after the Closing Date in respect of Seller and any employee who is not a Hired Employee;
(f) the full amount of severance pay payable to those Employees who reject the offer of employment made by a Buyer in connection herewith;
(g) any Liability relating to, or arising in connection with, the Litigation whether before or after the Closing, including for greater certainty any such Liability of Buyer or its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant products sold or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500services rendered after Closing; and
(mh) All Liabilities accruing, arising out of or related any Liability relating to the ownership, possession, use, operation or condition of the Purchased AssetsChina Joint Venture, the Ethanol Plant China JV Agreement or the Business before the ClosingContracts with, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assetspertaining to, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateChina Joint Venture.
Appears in 1 contract
Samples: Asset Purchase Agreement (Image Sensing Systems Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale shall not be obligated to assume or be obliged to pay, perform or otherwise discharge any Liability of, or Liability against, Sellers, Sellers’ Subsidiaries, the Business or the Acquired Assets, of assetsany kind or nature, whether or not direct or indirect, and that Buyer is not a legal successor Sellers shall be solely and exclusively liable with respect to all Liabilities of Seller and is assuming only Sellers, other than the Assumed Liabilities and not any (such Liabilities other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverthan Assumed Liabilities, whether known or unknowncollectively, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Without limiting the generality of the foregoing, the Excluded Liabilities include:shall include each of the following Liabilities of Sellers and Sellers’ Subsidiaries, except to the extent they are set forth in Sections 2.3(a)-(m):
(a) all Liabilities with respect to any Liabilities of Taxes that are not expressly assumed by the Seller for costs and expenses incurred (or Buyer pursuant to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerSection 2.3(k);
(b) any all Liabilities of with respect to Actions and Proceedings pending on or before the Seller relating Closing Date or to its performance under this Agreement and the Transaction Documents and extent against or giving rise to Liability against the transactions contemplated hereby and therebyBusiness or the Acquired Assets prior to the Closing Date even if instituted after the Closing Date other than the Acquired Actions;
(c) all Liabilities to any Liabilities owner or former owner of the capital stock or warrants with respect to such capital stock or warrants, holder of Indebtedness for borrowed money, or current or former officer or director of, in each case, any Seller for Intercompany Accountsor Subsidiary of any Seller in such capacities;
(d) except as expressly provided herein, all Liabilities with respect to any Liabilities Excluded Asset, including any and all Collective Bargaining Agreements, Excluded Benefit Plans and liabilities in respect of the Seller for asset retirement obligations related to railcarsbenefit plans, programs and arrangements of any ERISA Affiliate;
(e) except as expressly set forth in this Agreementall Liabilities under any futures contracts, all Indebtednessoptions on futures, Contracts and Liabilities of any kind, character swap agreements or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closingforward sale agreements;
(f) other than Trade Payables and the Estate Retained Professional Fees Trust Amount, all Liabilities for: (i) costs and expenses incurred or owed in connection with the administration of Seller or any the Bankruptcy Case (including all Estate Retained Professional Fees); and (ii) all costs and expenses incurred by Sellers in connection with the negotiation, execution and consummation of its Affiliates the transactions contemplated under the Assumed Contracts to the extent required to be paid or performed prior to Closingthis Agreement;
(g) except as set forth in Section 2.3(d), all Liabilities arising out workers’ compensation claims and occupational health claims related to the Acquired Assets, including and with respect to Buyer Employees and former employees of Sellers who worked or relating to or associated with who were employed at the Excluded Acquired Assets;
(h) any Liability or other obligations of Sellers or any ERISA Affiliate arising under, relating to or with respect to any multiemployer pension plan, single employer pension plan or Multiemployer Plan;
(i) except for the Assumed Benefits, all Liabilities with respect to Employees, or former Employees, or both (ior their representatives or beneficiaries) Taxes or employees of any ERISA Affiliate, for any action or inaction of any Seller (or any stockholder member, predecessor of any Seller) occurring prior to or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) including with respect to vacation, payroll, sick leave, unemployment benefits, retirement benefits, pension benefits, employee stock option, equity compensation, employee stock purchase, or profit sharing plans, health care and other welfare plans or benefits (including COBRA or the Coal Act), or any other employee plans or arrangements or benefits or other compensation of any kind to any employee, including under any Excluded Benefit Plan or benefit plans, programs and arrangements of an ERISA Affiliate, and Liabilities or relationships existing on or prior of Sellers and their predecessors pursuant to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit CWARN Act;
(j) All Liabilities except for the Assumed Benefits, any Liability arising under any employment agreement, Collective Bargaining Agreement or arrangement, severance, retention or termination agreement or other similar arrangement with any employee, consultant or contractor (or its representatives) of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Dateany Seller;
(k) All all Liabilities (other than Assumed Liabilities) accruing, arising out of, or relating to any federal, state or local investigations of any Seller or any Employee, agents, vendors or representatives of any Seller arising out of actions prior to the Closing (other than rights of setoff and their respective Affiliates related to Syngenta/ADM Actions;recoupment claims); and
(l) All except as set forth in Section 2.3(m), (i) if the Xxxxxx Xxxx Election or the Pre-Closing Xxxxxx Xxxx Election is made or if the Xxxxxx Xxxx Assets are sold to a Successful Bidder (other than the Buyer or a Buyer Designee), Liabilities associated with to the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or extent related to the ownership, possession, use, operation or condition of the Purchased Xxxxxx Xxxx Assets, (ii) if the Ethanol Plant Blue Creek Assets are sold to a Successful Bidder (other than the Buyer or a Buyer Designee), Liabilities to the Business before extent related to the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Blue Creek Assets, the Ethanol Plant (iii) if any Miscellaneous Real Property Assets are designated by Buyer as “Excluded Assets” or the Business before the Closing and if any liabilities and obligations, including any products liability for defective or off-spec Inventories Miscellaneous Real Property Assets are sold to Third Parties prior a Successful Bidder (other than the Buyer or a Buyer Designee), Liabilities to the Closing Dateextent related to such Miscellaneous Real Property Assets and (iv) to the extent that there are Acquired Non-Core Assets, Liabilities to the extent related to such Acquired Non-Core Assets.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except Except as expressly set forth in this AgreementSection 2.03, all IndebtednessBuyer shall not assume and shall not be responsible to pay, Contracts and Liabilities of perform or discharge any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under of any kind or nature whatsoever other than the Assumed Contracts to Liabilities (the extent required to be paid or performed prior to Closing;“Excluded Liabilities”). Seller shall pay and satisfy in due course all Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
(ga) all Liabilities any liabilities or obligations arising out of or relating to Seller’s ownership or associated with operation of the Business and the Purchased Assets prior to the Closing Date (including professional liability claims), except to the extent such liabilities or obligations are Assumed Liabilities;
(b) any liabilities or obligations relating to or arising out of the Excluded Assets;
(hc) all Liabilities with respect to any liabilities or obligations for (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Tax taxable period (or portion thereof) ending on or before prior to the Closing Date; (iiiii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of(other than as set forth in Section 6.11); and (iii) any other Taxes of Seller or any stockholders or Affiliates of Seller for any taxable period;
(d) any Environmental Claims, and are payable byor Liabilities under Environmental Laws, to the Sellerextent arising out of or relating to facts, whether such Taxes arise by Law circumstances or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships conditions existing on or prior to the Closing Date or otherwise to the extent arising out of any actions or omissions of Seller:
(e) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by agreements entered into or transactions entered into the Business’ customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement:
(f) any Liabilities arising out of in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order;
(g) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, member, manager, employee or agent of Seller;
(h) any liabilities or obligations of Seller relating to or arising out of (i) the employment, or termination of employment, of any Employee prior to the Closing, or (ii) workers’ compensation claims of any Employee which relate to events occurring prior to the Closing Date;; and
(i) all Liabilities any liabilities or obligations of Seller and its Affiliates with respect to Employees as provided arising or incurred in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated connection with the matters described in that certain Consent Agreement negotiation, preparation, investigation and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out performance of or related to the ownership, possession, use, operation or condition of the Purchased Assetsthis Agreement, the Ethanol Plant or other Transaction Documents and the Business before the Closingtransactions contemplated hereby and thereby, including Liabilities for personal injury or death or damage to property fees and expenses of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assetscounsel, the Ethanol Plant or the Business before the Closing accountants, consultants, advisers and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateothers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Comstock Holding Companies, Inc.)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and is not assuming any other Liabilities Liability or obligation of the Seller or 4 any of its Affiliates of any nature whatsoeverwhatever nature, whether known currently in existence or unknown, absolute or contingent, and whether presently existing or hereafter arisingarising hereafter. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or and its Affiliates, as applicable Affiliates (all such liabilities and obligations not expressly being assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The For avoidance of doubt, notwithstanding anything contained in this Agreement to the contrary, all obligations and Liabilities of Medegen shall continue to be retained by Medegen on and after Closing, subject to Section 2.7(b) and the rights of the Buyer Indemnified Parties pursuant to Section 10.2(a). Seller shall, or shall cause its Affiliates to, as applicable, pay, discharge and perform as and when due the Excluded Liabilities. Without limiting the generality of the foregoing, Excluded Liabilities shall include:
(a) any all Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities claims of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business by Seller or its Affiliates (specifically excluding Medegen) prior to the Closing, other than Assumed Liabilities;
(b) all Excluded Taxes;
(c) any Liability to the extent relating to any Excluded Asset;
(d) Pre-Closing Accounts Payable;
(e) all Liabilities (specifically excluding Liabilities of Medegen) associated with compliance with, or otherwise arising under, any Applicable Law, including any Business Permits, but only to the extent related to or arising out of the ownership or operation of the Assets or conduct of the Business prior to the Closing;
(f) all Liabilities of with respect to, or relating to, Containment Business Employees, Seller Corporate Employees or any of its Affiliates under the Assumed Contracts Seller Medegen Business Employees that are expressly retained or assumed by Seller pursuant to the extent required to be paid or performed prior to ClosingArticle VII;
(g) all Liabilities arising out with respect to Benefit Plans of Seller and its ERISA Affiliates (other than Medegen) other than Business Benefit Plans, except, with respect to such Business Benefit Plans, to the extent assumed by Seller or relating Medegen Parent pursuant to Section 2.7(b) or associated with the Excluded AssetsSection VI of Exhibit M;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees (specifically excluding Medegen as provided in Exhibit C;described below under this Section 2.6) other than the Assumed Liabilities; and
(ji) All all Liabilities retained by Seller pursuant to Exhibit M. For avoidance of doubt, notwithstanding anything herein to the contrary, Medegen shall retain all Liabilities of Medegen, subject to Section 2.7(b) and any indemnity rights of the Buyer Indemnified Parties under Section 10.2(a). The Parties acknowledge that, subject to terms of Exhibit M (which are hereby incorporated herein), Seller shall bear all current Liabilities (other than Assumed Liabilities) representing costs and its Affiliates related to expenses incurred in the Green Shift License Agreement to the extent such Liabilities arose from Ordinary Course in connection with the operation of the Ethanol Plant or the Business conducted by Seller prior to the Closing Date;
Date (kincluding those arising under contracts in connection with services, utilities, rentals, maintenance, etc.) All and Buyer or its Affiliates shall bear all such current Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
the Business incurred in the Ordinary Course (lincluding those arising under contracts in connection with services, utilities, rentals, maintenance, etc. that were entered into at any time) All Liabilities associated in connection with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, Business conducted by Buyer or its Affiliates after the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateClosing.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase Assumed Liabilities, Buyer and sale of assetsBuyer Entities shall not assume and under no circumstances shall Buyer or Buyer Entities be obligated to pay or assume, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities none of the assets of Buyer or Buyer Entities shall be or become liable for or subject to any liability, indebtedness, commitment, or obligation of Seller, Seller Entities or 4 any of its Affiliates of any nature whatsoevertheir respective Affiliates, whether known or unknown, absolute fixed or contingent, and whether presently recorded or unrecorded, currently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of arising or otherwise (collectively, the Seller and/or its Affiliates"EXCLUDED LIABILITIES"), as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as including, without limitation, the “following Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (debt, obligation, expense or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerliability that is not an Assumed Liability;
(b) any Liabilities of the Seller claims or potential claims for medical malpractice or general liability relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related events asserted to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business have occurred prior to the Closing;
(fc) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closingthose claims and obligations (if any) specified in Schedule 1.4 hereto;
(gd) all Liabilities any liabilities or obligations associated with or arising out of or relating to or associated with any of the Excluded Assets;
(he) all Liabilities with liabilities and obligations of Seller, Seller Entities or their respective Affiliates, regardless of when imposed, in respect of periods prior to (i) Taxes the Closing Date arising under the terms of Seller (or any stockholder memberthe Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or Affiliate other third party payor programs (provided, however, that this clause (e) shall not apply to any and all Assumed Liabilities under Section 1.3(a) hereof);
(f) federal, state or local tax liabilities or obligations of Seller); (ii) Taxes relating , Seller Entities or their respective Affiliates in respect of periods prior to the BusinessClosing including, the Assets or the Assumed Liabilities for without limitation, any Tax period income tax, any franchise tax, any tax recapture, any state and local recording fees and taxes (or portion thereofexcluding those contemplated in Sections 12.28 and 12.29) ending on or before the Closing Date; (iii) Taxes that which may arise out of upon the consummation of the transactions contemplated hereby herein (exclusive of any financing transactions engaged in by Buyer or its Affiliates, which constitute obligations ofshall be the obligation of Buyer), and are any FICA, FUTA, workers' compensation, and any and all other taxes or amounts due and payable by, as a result of the Seller, whether such Taxes arise by Law or as agreed to exercise by the parties hereto under Section 8.4(aemployees at the Facilities of any such employee's right to vacation, sick leave, and holiday benefits accrued while in the employ of the Seller Entities (provided, however, that this clause (f) or other provisions of this Agreement; or (iv) all Taxes attributable shall not apply to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) and all taxes payable with respect to any employee benefits constituting Assumed Liabilities under Section 1.3(d) hereof);
(g) liability for any and all claims by or relationships existing on behalf of employees of Seller, Seller Entities or their respective Affiliates relating to periods prior to the Closing Date including, without limitation, liability for any pension, profit sharing, deferred compensation, or by agreements entered into any other employee health and welfare benefit plans, liability for any EEOC claim, ADA claim, FMLA claim, wage and hour claim, unemployment compensation claim, or transactions entered into on workers' compensation claim, and any liabilities or obligations to former employees of Seller, Seller Entities or their respective Affiliates under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (provided, however, that this clause (g) shall not apply to any and all employee benefits constituting Assumed Liabilities under Section 1.3(d) hereof);
(h) any obligation or liability accruing, arising out of, or relating to any federal, state or local investigations of, or claims or actions against, Seller, Seller Entities or their respective Affiliates or any of their employees with respect to acts or omissions prior to the Closing DateClosing;
(i) all Liabilities any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of Seller, any of the Seller Entities, any of their respective Affiliates or their directors, officers, employees and its Affiliates with respect agents claimed to Employees as provided in Exhibit Cviolate any constitutional provision, statute, ordinance or other law, rule, regulation, interpretation or order of any governmental entity;
(j) All Liabilities liabilities or obligations arising as a result of any breach by Seller, any of the Seller and its Entities or their respective Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation at any time of the Ethanol Plant any contract or the Business prior to the Closing Datecommitment that is not assumed by Buyer or Buyer Entities;
(k) All Liabilities liabilities or obligations arising out of any breach by Seller, any of the Seller and Entities or their respective Affiliates related of any Contract, or amounts due and payable, accruing or occurring prior to, or with respect to Syngenta/ADM Actionsthe period before, the Closing;
(l) All Liabilities associated any obligation or liability asserted under the federal Xxxx-Xxxxxx program or other restricted grant and loan programs with respect to the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500ownership or operation of the Facilities or the Assets prior to the Closing; and
(m) All Liabilities accruingany debt, obligation, expense, or liability of Seller, Seller Entities and their respective Affiliates arising out of or related to the ownershipincurred solely as a result of any transaction of Seller, possession, use, operation Seller Entities or condition of the Purchased Assets, the Ethanol Plant or the Business before their respective Affiliates occurring after the Closing, including Liabilities or for personal injury any violation by Seller, Seller Entities or death or damage to property their respective Affiliates of any Third Party attributable law, regulation, or ordinance at any time (including, without limitation, those pertaining to or arising out of the ownership or operation of the Purchased Assetsfraud, the Ethanol Plant or the Business before the Closing environmental, healthcare regulatory and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateERISA matters).
Appears in 1 contract
Samples: Asset Purchase Agreement (Psychiatric Solutions Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase and sale of assetsor any other writing to the contrary, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and is not assuming any other Liabilities liability or obligation of the Seller or 4 any Affiliate of Seller (or any predecessor owner of all or part of its Affiliates business and assets) of any whatever nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing in existence or hereafter arisingarising or asserted hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities and obligations of the Seller and/or or its Affiliates, as applicable Affiliates (all such liabilities and obligations not expressly being assumed by Buyer hereunder being herein referred to as the “"Excluded Liabilities”"). The Excluded Without limiting the foregoing, none of the following shall be Assumed Liabilities includefor the purposes of this Agreement:
(a) all liabilities and obligations arising out of or relating to the Business or the operations or affairs of Seller on or prior to the Closing Date, including without limitation any Liabilities liabilities and obligations arising out of or relating to any facts, conditions or circumstances which occurred or existed prior to the Closing, including without limitation any claims by security holders or former security holders of Seller;
(b) any and all liabilities and obligations of Seller for costs and expenses incurred (or to be incurred) for services performed by its legalTaxes, financial, accounting and investment banking advisors in connection with including without limitation any Taxes that arise as a result of the transactions contemplated by this AgreementAgreement and Taxes described on Schedule 3.12;
(c) any and all liabilities and obligations of Seller relating to employee or consultant benefits or compensation arrangements, including, without limitation, any broker’s fees liabilities or obligations for accrued vacation time or pay and any liabilities and obligations under any of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts's employee benefit agreements, plans or other arrangements listed on Schedule 8.02;
(d) any Liabilities of the Seller for asset retirement obligations related to railcarsEnvironmental Liabilities;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character liability or description (whether known or unknown, accrued, absolute, contingent or otherwise) obligation relating to an Excluded Asset;
(f) all warranty, sales returns and allowance claims or arising out expenses of the ownership Seller in respect of products sold or operation of the Purchased Assets licensed or the conduct of services rendered by the Business prior to the Closing;
(fg) all Liabilities of Seller any liability or any of its Affiliates under the Assumed Contracts obligation relating to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with Contracts not specifically assumed by the Excluded Assets;Buyer, including without limitation those Contracts listed on Schedule 2.04; and
(h) all Liabilities with respect to (i) Taxes of Seller (any liability or obligation under any stockholder member, equity or Affiliate equity-like securities of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assetswithout limitation stock options, the Ethanol Plant or the Business before the Closing rights and any liabilities warrants and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datestock plans.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that following liabilities (the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only "Excluded Liabilities") shall be excluded from the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities indebtedness of the Seller for costs and expenses incurred LCC or any of its Affiliates (or to be incurredincluding LCC AS) for services performed borrowed money (including any and all amounts payable by its legal, financial, accounting and investment banking advisors in connection with LCC or LCC AS pursuant to the transactions contemplated by this Asset Purchase Agreement, includingdated as of December 30, without limitation1996, between European Technology Partner AS and LCC International AS, any broker’s fees outstanding balance under the Swingline Loans (as such term is defined in the Third Amended and Restated Credit Agreement, dated as of Seller’s brokerDecember 31, 1998, among The Chase Manhattan Bank as Administrative Agent, the lenders signatory thereto, LCC, LCC Design Services L.L.C., LCC Development Company, L.L.C., Microcell Management, Inc., Koll Xxxecommunications, L.L.C. and LCC AS (the "Chase Credit Facility")) and any and all intercompany payables) except for such indebtedness as is reflected on the March 31 Statements of Net Assets;
(b) any Liabilities liabilities for Taxes (including Japanese sales taxes owed in respect of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwisepre-Closing sales) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller LCC Businesses accruing, or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder membertime period, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(ic) all Liabilities of Seller any product liability and its Affiliates strict liability claim with respect to Employees as the products or services sold or provided in Exhibit C;
(j) All Liabilities of by the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant LCC Businesses on or the Business prior to the Closing Date;
(kd) All Liabilities of Seller and their respective Affiliates related workers' compensation claims by Accepting Employees to Syngenta/ADM Actionsthe extent arising from occurrences or occupational diseases contracted on or before the Closing Date;
(le) All Liabilities associated with the matters described in that certain Consent Agreement employee discrimination, harassment, retaliation, wrongful discharge, breach of employment agreement or covenants, disputes relating to commission payments or any other type of compensation including claims for regular or overtime wages, any personal injury, intentional tort or negligence claims and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related unfair labor practice claims to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or extent arising out of the ownership or operation conduct of the Purchased Assets, the Ethanol Plant LCC Businesses on or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.;
(f) liabilities with respect to employees or employee benefit plans, including, without limitation, liabilities under the LCC Businesses Employee Retention Program, except to the extent specifically assumed by Purchaser pursuant to Section 7.3;
(g) to the extent not accrued or reserved for on the Closing Statement of Net Assets, any interest and penalty payments in respect of late payments owed to vendors, contractors and other suppliers of LCC and LCC AS in respect of pre-Closing periods;
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase and sale of assetsto the contrary, and that Buyer is not a legal successor of Seller and Purchaser is assuming only the Assumed Liabilities and is not assuming, and shall not be deemed to have assumed, any other Liabilities of Seller of whatever nature (whether arising prior to, at the Seller time of, or 4 any of its Affiliates of any nature whatsoeversubsequent to Closing), whether absolute, accrued, contingent or otherwise, whether due or to become due and whether or not known or unknown, absolute unknown or contingent, and whether presently currently existing or hereafter arising. All such other liabilities arising or matured or unmatured, direct or indirect, and obligations Seller shall be retained by solely and remain liabilities exclusively liable for any and obligations all such Liabilities, including those Liabilities, other than the Assumed Liabilities, related to, arising out of or in connection with the operation of the Seller and/or its AffiliatesBusiness or the Purchased Assets (including the use and ownership thereof) at any time prior to the Closing Date, as applicable and including those Liabilities set forth below (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as collectively, the “Excluded Liabilities”). The Excluded Liabilities include:):
(a) any all Liabilities arising out of, related to or otherwise in respect of the Purchased Assets or the Business arising prior to the Closing other than the Assumed Liabilities;
(b) all Liabilities of Seller related to or otherwise arising, whether before, on or after the Closing, out of, or in connection with, any of the Excluded Assets;
(c) any and all Liabilities for Indebtedness with respect to borrowed money and any intercompany Indebtedness among Seller and any of its Subsidiaries;
(d) all guarantees of third party obligations, all guarantees of obligations of any Affiliates of Seller, and reimbursement obligations to guarantors of Seller’s obligations or under letters of credit;
(e) any and all Liabilities for costs and expenses incurred (i) Taxes of Seller arising in or related to be incurredany taxable period, or portion thereof, ending on or before the Closing Date, (ii) for services performed by its legal, financial, accounting and investment banking advisors any Taxes arising in connection with the consummation of the transactions contemplated by this Agreement, including(iii) Taxes imposed on any Person that are the responsibility of Seller pursuant to Section 11.1(b), without limitation, any broker’s fees of Seller’s broker;
(biv) any Liabilities of the Seller relating Taxes arising from or attributable to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct operation of the Business prior to for any taxable period, or portion thereof, ending on or before the ClosingClosing Date, and (v) Taxes arising from or in connection with an Excluded Asset and, other than as set forth in Section 1.3, any Taxes of Seller arising on or after the Closing Date;
(f) any and all Liabilities of Seller resulting from any failure to comply with applicable “bulk sale”, “bulk transfer” or similar Law;
(g) any and all Liabilities of Seller in respect of Contracts that are not Assigned Contracts, including the Contracts set forth on Schedule 1.4(g);
(h) all Cure Costs not included in, and in excess of, the Assumed AP under Section 1.3;
(i) all Liabilities (excluding those set forth on Schedule 1.3(b)) related to (i) any current or former employees, officers, directors, independent contractors or other service providers of Seller or any of its Affiliates under (except for Liabilities pertaining to Transferred Employees and incurred after the Assumed Contracts Closing with respect to Transferred Employees solely in their capacity as employees of Purchaser or an Affiliate thereof), (ii) any Action brought by any Transferred Employee in connection with any act taken by Seller or any of its Affiliates at or prior to the Closing, (iii) the employment or termination of any Transferred Employee at or prior to the Closing or as a result of the transactions contemplated by this Agreement, (iv) any change in control, retention, success bonuses or similar obligations payable by Seller and its Affiliates to any Transferred Employee as a result of the transactions contemplated by this Agreement and (v) any Seller Plan;
(j) drafts or checks outstanding at the Closing (except to the extent an Assumed Liability or related to an Assigned Contract);
(k) all Liabilities under any futures contracts, options on futures, swap agreements or forward sale agreements;
(l) all Liabilities for fees, costs and expenses that have been incurred or that are incurred or owed by Seller in connection with this Agreement or the administration of the Bankruptcy Cases (including all fees and expenses of professionals engaged by Seller) and administrative expenses and priority claims accrued through the Closing Date and post-closing administrative wind-down expenses of the bankrupt estates pursuant to the Bankruptcy Code (which such amounts shall be paid by Seller) and all costs and expenses incurred in connection with (i) the negotiation, execution and consummation of the transactions contemplated under this Agreement and each of the other documents delivered in connection herewith, (ii) the preparation and submission of any filing or notice required to be paid made or performed prior given in connection with any of the transactions contemplated by this Agreement, and the obtaining of any consent required to Closingbe obtained in connection with any of such transactions, (iii) the negotiation, execution and consummation of the DIP Financing Agreement and (iv) the consummation of the transactions contemplated by this Agreement, including any retention bonuses, “success” fees, change of control payments and any other payment obligations of Seller payable as a result of the consummation of the transactions contemplated by this Agreement and the documents delivered in connection herewith;
(gm) any non-Ordinary Course of Business Liability of Seller arising in the Bankruptcy Cases;
(n) all Liabilities related to the WARN Act, to the extent applicable, for any action resulting from Employees’ separation of employment prior to or on the Closing Date;
(o) all Liabilities of Seller to its equity holders respecting dividends, distributions in liquidation, redemptions of interests, option payments or otherwise, and any liability of Seller pursuant to any Affiliate Agreement;
(p) all Liabilities arising out of or relating related to any business or associated with the Excluded Assetsproperty formerly owned or operated by Seller, any Affiliate or predecessor thereof, but not presently owned and operated by Seller;
(hq) all Liabilities with respect related to Claims, commercial disputes, actions, suits, arbitrations, litigation matters, proceedings or investigations (i) Taxes of Seller (or any stockholder memberin each case whether involving private parties, authorities, or Affiliate of Seller); (iiotherwise) Taxes relating to involving, against, or affecting any Purchased Asset, the Business, Seller (other than those involving, against or affecting any Transferred Employees arising after the Assets Closing) or the Assumed Liabilities for any Tax period (assets or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out properties of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law commenced, filed, initiated, or as agreed threatened before or after the Closing and whether related to by facts, events, or circumstances arising or occurring before or after the parties hereto under Section 8.4(a) or other provisions of this Agreement; or Closing, including the matters set forth on Schedule 1.4(q);
(ivr) all Taxes attributable obligations of Seller arising and to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or be performed prior to the Closing Date arising from or by agreements entered into or transactions entered into on or prior related to the Closing DateBusiness or the Purchased Assets;
(is) all Environmental Liabilities and Obligations;
(t) all Liabilities of Seller and or its Affiliates with respect predecessors arising out of any contract, agreement, Permit, franchise or claim that is not transferred to Employees Purchaser as provided in Exhibit Cpart of the Purchased Assets or, is not transferred to Purchaser because of any failure to obtain any third-party or governmental consent required for such transfer;
(ju) All all Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement or arising under any corporate restructuring process, including (i) any advisor fees, including financial advisor fees, consultant fees, legal fees and accounting fees and (ii) any other commitment that is not directly related to servicing or supporting customer accounts;
(v) all Liabilities and payment obligations related to or arising under any information technology assets owned or licensed to Seller, except to the extent such Liabilities arose from the operation of the Ethanol Plant assumed by Purchaser as Purchased Assets or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Assumed Liabilities; and
(mw) All any Liabilities accruing, arising out of or Seller related to the ownership, possession, use, operation operations of or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior otherwise related to the Closing Datebusiness of Ciber-CMC Joint Venture Corporation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciber Inc)
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.6 or any other provisions in this Agreement involve a purchase to the contrary, Purchaser shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only of any kind or nature whatsoever other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”), and the Seller shall pay and remain responsible for all such Excluded Liabilities. The Without limiting the generality of this Section 2.7, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller for costs and expenses incurred (arising from, or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with with, the transactions contemplated conduct of the Business prior to the Closing or the ownership of the Purchased Assets by this AgreementSeller prior to the Closing, including, without limitation, any broker’s fees such Liabilities arising by reason of any violation or claimed violation by Seller’s broker, by acts or events or omissions arising or occurring prior to the Closing, of any federal, state or local Law;
(b) any Liabilities of Seller arising from, or in connection with, the Seller relating Custodial Accounts prior to its performance under this Agreement and Closing, except to the Transaction Documents and extent such Liabilities arise from Buyer’s access to, or use of, Seller’s information related to the transactions contemplated hereby and therebyCustodial Accounts;
(c) to the extent not covered by any Liabilities applicable manufacturer’s warranty, any warranty liability of Seller or similar obligation of Seller arising from products sold or services rendered prior to the Seller for Intercompany AccountsClosing;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of Excluded Assets;
(e) any Liabilities incurred by Seller not included in the Purchased Assets or the conduct of the Business prior to the ClosingAssumed Liabilities;
(f) all any Liabilities of Seller incurred in connection with any business or any activity of its Affiliates under Seller other than the Assumed Contracts to the extent required to be paid or performed prior to ClosingBusiness;
(g) all any Liabilities arising out of or relating Seller for any Taxes required by Law to or associated with the Excluded Assets;
(h) all Liabilities with respect to be paid by Seller (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Tax taxable period (or portion thereof) ending on or before the Closing Date; (ii) with respect to any Excluded Assets; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and or that are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto responsibility of Seller under Section 8.4(a) or other provisions of this Agreement7.2; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as kind or description (including any liability for Taxes of Seller that becomes a liability of Purchaser under the principles of transferee or successor, successor liability or otherwise by operation of contract or pursuant law);
(h) any Liabilities of Seller related to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local arising out of fees and expenses of Seller’s Accountants or foreign Law) legal connection in connection with respect to Liabilities or relationships existing on or prior to this Agreement and the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Datecontemplated hereby;
(i) all any Liabilities of Seller and its Affiliates for any present or former employees, agents or independent contractors of Seller, including, without limitation, any Liabilities associated with respect any claims for wages, bonuses, commissions, accrued vacation or other benefits, severance, termination or other payments accrued or incurred prior to Employees as provided in Exhibit CClosing;
(j) All any Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Dateunder any Benefit Plan;
(k) All any Liabilities or obligation with respect to indebtedness of Seller and their respective Affiliates related or the Business owing to Syngenta/ADM Actions;any bank or other financial institution; and
(l) All Liabilities associated with the matters described in that certain Consent Agreement any trade payables and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out accounts payable of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSeller.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only Except for the Assumed Liabilities and Liabilities, Buyer shall not any other Liabilities assume or be responsible for the performance of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerthe following Liabilities (collectively, the “Excluded Liabilities”):
(a) Any Liability of Seller in respect of or otherwise arising from the operation or use of the Excluded Assets;
(b) any Liabilities Any Liability of Seller arising from the Seller relating to its making or performance under of this Agreement and the Transaction Documents and or a Related Agreement or the transactions contemplated hereby and or thereby;
(c) Any Liability of Seller under the Assigned Contracts or Assigned Leases (i) in respect of payment obligations for goods delivered or services rendered prior to the Closing Date or (ii) relating to a breach or default by Seller of any Liabilities of its obligations thereunder occurring prior to the Seller for Intercompany AccountsClosing Date, regardless of whether such Liability arises or is discovered on or after the Closing Date;
(d) any Except for those Assumed Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this AgreementSection 2.3(c), all Indebtednessany Liability of Seller (i) for any compensation, Contracts benefits, employment Taxes, workers compensation benefits and other similar Liabilities in respect of the Transferred Employees (including under the Generation CBA, any kindEmployee Benefit Plan of Seller, character or description any other agreement, plan, practice, policy, instrument or document relating to any of the Transferred Employees) to the extent arising or accruing prior to the Closing Date, (whether known or unknown, accrued, absolute, contingent or otherwiseii) relating to the Transferred Employees for which Seller is responsible under Section 5.8, or arising out (iii) in respect of the ownership any discrimination, wrongful discharge, unfair labor practice or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or similar Claim under applicable employment Laws by any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities Transferred Employee arising out of or relating to acts or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or omissions occurring prior to the Closing Date;
(ie) all Liabilities Any Liability of Seller and its Affiliates arising from or associated with respect to Employees as provided in Exhibit Cany Intercompany Arrangement, other than Liabilities under those Assigned Contracts set forth on Schedule 2.2(j);
(jf) All Liabilities Any Liability of the Seller and its Affiliates related for any fines or penalties imposed by a Governmental Authority resulting from (i) any investigation or proceeding pending prior to the Green Shift License Agreement to the extent such Liabilities arose from the operation Closing Date or (ii) illegal acts or willful misconduct of the Ethanol Plant or the Business Seller prior to the Closing Date;
(kg) All Liabilities Any Liability for Taxes (including, with respect to property Taxes, payments in addition to or in lieu of Seller Taxes and their respective Affiliates related to Syngenta/ADM Actions;
(lthe Property Tax Stabilization Payments) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related relating to the ownership, possessionoperation, use, operation sale or condition use of the Purchased Assets, the Ethanol Plant or the Business before Acquired Assets prior to the Closing, including Liabilities except those Taxes for personal injury which Buyer is liable pursuant to Section 2.7, Section 5.12 and Section 5.13;
(i) any Environmental Liability to the extent such Environmental Liability arises out of or death or damage relates to property any Governmental Authority’s allegation and investigation of any Third Party attributable violations of Environmental Laws by Seller, and (ii) any Liability relating to the treatment, disposal, storage, discharge, or arising out Release of Hazardous Substances that were generated at the Sites through ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date, including relating to recycling or the arrangement for such activities at, or the transportation to, any Offsite Disposal Facility by Seller, prior to the Closing Date (such liabilities, the “Excluded Environmental Liabilities”). For the avoidance of doubt, it is the intention of the Parties that this Section 2.4(h) shall exclusively define those Environmental Liabilities constituting Excluded Liabilities hereunder, and that no other provision of this Section 2.4 shall be construed to include any Environmental Liabilities; and
(i) Any Liability of Seller in respect of accounts payable or accrued expenses.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by contrary in this Agreement involve a purchase and sale of assetsAgreement, the Purchaser shall not assume or in any way be responsible for, and that Buyer is not a legal successor the Seller shall remain obligated to pay, honor, perform and discharge, all of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever(other than the Assumed Liabilities) (collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include, including, without limitation:
(a) any Liabilities arising out of or relating to the Seller’s ownership, use or operation of the Business and the Purchased Assets, in each case prior to the Closing arising by operation of law under any common law or statutory doctrine (other than the Assumed Liabilities);
(b) any Liabilities based upon, relating to, arising under or with respect to the Excluded Assets or the ownership, operation or use of any businesses of the Seller or any of its Affiliates, other than the Business, whether before, at or after the Closing;
(c) all Liabilities relating to indebtedness of the Seller;
(d) any Liabilities directly or indirectly arising out of or related to any breach of Contract occurring or existing prior to the Closing;
(e) any liabilities or obligations for costs (i) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for the Pre-Closing Tax Period, (ii) Taxes relating to the Seller or any of its equity holders or Affiliates, including, but not limited to, any Taxes that will arise as a result of the sale of the Purchased Assets and expenses incurred the Assumed Liabilities pursuant to this Agreement, and (iii) any deferred Tax liabilities;
(f) any Liabilities of the Seller based upon, relating to, or arising under or with respect to (i) any Seller Benefit Plan, (ii) the employment or termination of employment of (x) any employee of the Seller employed by the Purchaser following the Closing with respect to periods on or prior to the Closing and (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing at any time, and (iii) workers’ compensation claims, unemployment insurance premiums or any claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws of (x) any employee employed by the Purchaser following the Closing which relate to events occurring on or prior to the Closing and (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing which relate to events occurring at any time;
(g) any Liability based upon, arising under or with respect to any Environmental Law, including any Liability of the Seller in any way pertaining to or arising from the acts, omissions or strict liability of any predecessor of the Seller;
(h) any Liability based upon, arising under or with respect to any matter disclosed or required to be incurreddisclosed in Schedule 5.16;
(i) for services performed any Liability based upon any fee or commission or like payment payable to Generational Equity as a result of the transactions contemplated by its legal, financial, accounting this Agreement and investment banking advisors any other fee or expense arising or incurred by Seller in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;and
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruingany Liability based upon, arising out under or with respect to any warranty given or sold by the Seller, regardless of or related whether any warranty claim has been made to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datedate.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Seller shall retain and shall hereafter pay, perform, satisfy and discharge when due, all Liabilities other than Assumed Liabilities, and Buyer does not assume, and expressly disclaims responsibility for, any debts, liabilities, obligations or commitments of Seller or any other party of any kind or nature whatsoever with respect to the transactions contemplated by Seller Business or Transferred Assets arising, incurred or accruing on, before or after the Closing, except Assumed Liabilities which Buyer specifically assumes under this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities shall include, but not be limited to, the following:
(ai) any all Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of Excluded Assets other than the Purchased Assets or the conduct of the Business prior to the ClosingAssumed Liabilities;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(gii) all Liabilities arising out of any transaction or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of obligation incurred by Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before after the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to except for Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownershipTransferred Assets for the period following the Closing Date;
(iii) All obligations and liability to any of its current or former employees, possessionincluding but not limited to, employee salaries, benefits, accrued and unpaid vacation related to the period on or before the Closing Date;
(iv) all liabilities and obligations for taxes of any kind, including without limitation, Federal, state and local taxes, income, sales and use, ad valorem duties and assessments, FICA, contributions and profit sharing deductions relating to the operation or condition of the Purchased Assets, the Ethanol Plant Seller Business on or the Business before the ClosingClosing Date, including Liabilities (except for personal injury Transfer Taxes which shall be paid pursuant to Section 12.2); and
(v) any of Seller’s expenses or death or damage to property of any Third Party attributable fees incident to or arising out of the ownership negotiation, preparation, approval or operation authorization of this Agreement and the consummation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateTransaction.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsPurchaser shall not assume, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of the of, or Action against, any Seller or 4 any of its Affiliates of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, absolute or contingent, and whether presently currently existing or hereafter arising. All such , matured or unmatured, direct or indirect, and however arising, whether existing on the Closing Date or arising thereafter as a result of any act, omission, or circumstances taking place on or prior to the Closing, other liabilities and obligations shall be retained by and remain liabilities and obligations of than the Seller and/or its Affiliates, as applicable Assumed Liabilities (all such liabilities and obligations Liabilities that are not expressly assumed by Buyer hereunder Assumed Liabilities being herein referred to collectively herein as the “Excluded Liabilities”). The Without limiting the generality of the foregoing, the Excluded Liabilities includeshall include the following Liabilities of any Seller:
(a) any Liabilities of all Cure Costs other than the Seller for costs and expenses incurred Assumed Cure Costs (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker“Excluded Cure Costs”);
(b) except to the extent of any Liabilities Assumed Cure Costs, Assumed Current Liabilities, or Assumed Rebate Liability expressly assumed pursuant to Section 1.3, any Liability arising out of facts or circumstances in existence on or prior to the Closing and from or related to any breach, default under, failure to perform, torts related to the performance of, violations of Law, infringements or indemnities under, guaranties pursuant to and overcharges, underpayments or penalties on the part of the Sellers or any of their Affiliates under any Contract, agreement, arrangement or understanding to which any Seller relating or any of its Affiliates is a party prior to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyClosing;
(c) except to the extent of any Assumed Cure Costs, Assumed Current Liabilities, or Assumed Rebate Liability expressly assumed pursuant to Section 1.3, all Liabilities arising out of, relating to or otherwise in respect of the Seller for Intercompany Accountsoperation of the Business or businesses of Sellers’ Affiliates, or any of the Sellers’, or Sellers’ Affiliates’, products or services, or the operation or condition of the Acquired Assets or the Assumed Liabilities, in each case, on or prior to the Closing or facts, actions, omissions, circumstances or conditions existing, occurring or accruing on or prior to the Closing;
(d) any all Liabilities of the Seller for asset retirement obligations arising from or related to railcarsany Action (whether civil, criminal, administrative, investigative, or informal) against any Sellers or their Affiliates, (including, for the avoidance of doubt, any Action related to fraud, breach of fiduciary duty, misfeasance or under any other theory relating to conduct, performance or non-performance of any Seller, or any of their Affiliates, or any of their respective directors, officers, or employees), or related to the Acquired Assets or the Assumed Liabilities, pending or threatened or having any other status or with respect to facts, actions, omissions, circumstances or conditions existing, occurring or accruing prior to the Closing (including any breach, default, failure to perform, torts related to performance, violations of Law, infringements or indemnities, guaranties and overcharges, underpayments or penalties, whether in respect of any Contract, agreement, arrangement, promise or understanding of any kind) including any successor liability claims or that may be owed to or assessed by, any Governmental Body or other Person, and whether commenced, filed, initiated, or threatened prior to, on or following the Closing;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) to the extent relating to or arising out otherwise arising, whether before, on or after the Closing, under any of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the ClosingExcluded Contracts;
(f) all Liabilities of Seller or Sellers for Indebtedness and any of its Affiliates under the Assumed Contracts Accrued Rebate Liability related to the extent required any billed and unbilled rebate receivables related to be paid or performed prior to ClosingEIC;
(g) all Liabilities arising out guarantees of Indebtedness made by the Sellers and all reimbursement obligations to guarantors of the Sellers’ obligations or relating to under letters of credit or associated with the Excluded Assetsother similar agreements or instruments;
(h) other than the Assumed Rebate Liability, all Liabilities with respect related to claims or Actions by any pharmaceutical drug manufacturer, Group Purchasing Organizations, or any other Person related to rebates, recoupment, payments or similar items, whether or not pursuant to any Assigned Contract or any other Contract (the “Excluded Rebate Liability”);
(i) all Liabilities related to, resulting from or arising out of, prior to, on or after the Closing, any (i) unredeemed refund amounts, rebates (except for any Assumed Rebate Liability), or similar items, (ii) customer deposits or (iii) customer promotions and loyalty programs;
(j) all Liabilities to (i) Taxes any current or former owner of Seller capital stock or other Equity Interests of the Sellers or any securities convertible into, exchangeable or exercisable for shares of capital stock or other Equity Interests of the Sellers, (ii) any current or former holder of indebtedness for borrowed money of the Sellers or (iii) in respect of obligations for indemnification or advancement of expenses, any current or former officer or director of the Sellers, in each case of (i), (ii), and (iii), solely in such Person’s capacity as such;
(k) the sponsorship of and all Liabilities at any time arising under, pursuant to or in connection with any Employee Benefit Plans (whether arising prior to, on or after the Closing Date) and all Liabilities for compliance with the requirements of section 4980B of the Tax Code and the rules and regulations thereunder with respect to all individuals who are “M&A qualified beneficiaries” (as such term is defined in 26 C.F.R. § 54.4980B-9);
(l) Except as expressly assumed by Purchaser in Section 6.3(g), Liabilities arising under the WARN Act and similar Laws relating to the termination of any current or former employee or contractor of any Seller, or any Affiliate of a Seller, (including any Transferred Employees), and including any current, threatened or potential claims for compensation or benefits, in each such case, to the extent related to employment or contracting with the Sellers (or any stockholder memberof their Affiliates) or termination thereof, or Affiliate of Seller); (ii) Taxes relating to the Businesswhether arising prior to, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before after the Closing Date;
(iiim) Taxes that arise out all Liabilities and other payments incurred or otherwise payable by any of the Sellers or their respective Affiliates, or for which any of the Sellers or their respective Affiliates is liable, in connection with in connection with the administration of the Bankruptcy Cases or the negotiation, execution and consummation of the transactions Transactions or any Transaction Agreement (including any preparation for a transaction process, bankruptcy process, any sale process involving other potential buyers or any contemplated hereby which constitute obligations ofpublic offering or financing), including the fees and are payable byexpenses of financial advisors, the Selleraccountants, legal counsel, consultants, brokers and other advisors with respect thereto, whether such Taxes arise by Law incurred, accrued or as agreed payable on or prior to by or after the parties hereto under Section 8.4(a) or other provisions date of this Agreement; Agreement or the Closing Date;
(ivn) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date Liabilities of any Person imposed on Buyer as a transferee or successor, by contract Sellers arising under or pursuant to any Law (includingEnvironmental Laws, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) including with respect to any real property owned, operated, leased or otherwise used by Sellers, whether or not used in the Ordinary Course, including any Liabilities for noncompliance with Environmental Laws or relationships existing the Release of Hazardous Substances, to the extent arising as a result of any act, omission, or circumstances taking place on or prior to the Closing Date Closing, whether known or unknown as of the Closing;
(o) other than the Assumed Rebate Liability or any Assumed Current Liability expressly assumed pursuant to Section 1.3, all Liabilities relating to any Product that is or has been manufactured, tested, distributed, held or marketed by agreements entered into or transactions entered into on behalf of any Seller, or the Affiliate of any Seller, arising from any recall, withdrawal or suspension (whether voluntarily or otherwise), except to the extent that such recall, withdrawal or suspension results from Purchaser’s operation of the Business or the Acquired Assets following the Closing;
(p) all Liabilities as to which any Seller is an obligor, or is otherwise responsible or liable, to any Seller or any of its Affiliates, other than any Assumed Current Liability.
(q) all Liabilities of Sellers arising out of any (i) Excluded Contract, (ii) Permit that is not transferred to Purchaser as part of the Acquired Assets or, (iii) Contract or Permit that is not transferred to Purchaser (subject to Section 1.5(c)) because of any failure to obtain any Consent or Governmental Authorization required for such transfer;
(r) all Liabilities of Sellers related to any Contract of any Seller, or an Affiliate of any Seller, with Virginia Premier, which such Contracts shall be an Excluded Contract;
(s) all Liabilities relating to Transferred Employees that arise on or prior to the Closing Date;
(t) all Liabilities arising with respect to any Business Employees who are not required to receive a Transfer Offer or who otherwise fails to become employed by Purchaser or its Affiliates immediately following the Closing Date (including due to refusing to accept a Transfer Offer that complies with Section 6.3), other than as a result of Purchaser’s breach of Section 6.3;
(u) (i) all Liabilities relating to income Taxes imposed upon any of Seller and its Affiliates with respect to Employees the Sellers (or for which any of the Sellers may otherwise be liable, including as a transferee, successor, or by contract (other than as expressly provided in Exhibit C;
this Agreement)), without regard to whether such Taxes relate to periods (jor portions thereof) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant ending on or the Business prior to the Closing Date;
, (kii) All all Liabilities relating to Taxes imposed on or with respect to the Acquired Assets for any Pre-Closing Tax Period, and (iii) all Liabilities of Seller and their respective Affiliates related any of the Sellers relating to Syngenta/ADM Actions;
the payment for the income Taxes of any Person under Treasury Regulation Section 1.1502-6 (l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Orderor any similar provision of state, Green Plains Inc.local, respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06or non-2021-0500U.S. Law); and
(mv) All Liabilities accruing, arising out of drafts or related to the ownership, possession, use, operation or condition checks outstanding as of the Purchased AssetsClosing; provided that in the event of any conflict between the terms of Section 1.3 and this Section 1.4, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property terms of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSection 1.3 shall control.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.03 or any other provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any kind or nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such whatsoever other liabilities and obligations shall be retained by and remain liabilities and obligations of than the Seller and/or its Affiliates, as applicable Assumed Liabilities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Seller shall, and shall cause Xxxxxxxxx & Teal II, L.L.C. (if applicable) to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(cb) any Liabilities of the Seller Liability for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder memberpartner, equityholder or Affiliate of Seller); (ii) Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax period (or portion thereof) ending on or before the Closing DatePeriod; (iiiii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and or that are payable by, the Seller, whether such Taxes arise by Law or as agreed responsibility of Seller pursuant to by the parties hereto under Section 8.4(a) or other provisions of this Agreement6.09; or (iviii) all other Taxes attributable to any Tax period of Seller (or portion thereofany partner, equityholder or Affiliate of Seller) ending on or before the Closing Date of any Person imposed on kind or description (including any Liability for Taxes of Seller (or any partner, equityholder or Affiliate of Seller) that becomes a Liability of Buyer as a under any common law doctrine of de facto merger or transferee or successor, successor liability or otherwise by operation of contract or pursuant Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Law (includingLiabilities in respect of any pending or threatened Action arising out of, but not limited to, Treasury Regulations Section 1.1502-6 relating to or comparable federal, state, local otherwise in respect of the operation of the Business or foreign Law) with respect to Liabilities or relationships existing on or prior the Purchased Assets to the Closing Date or by agreements entered into or transactions entered into extent such Action relates to such operation on or prior to the Closing Date;
(ie) all any Liabilities of Seller and its Affiliates or the Business arising under or in connection with respect any Benefit Plan providing benefits to Employees any present or former employee, director or independent contractor of Seller;
(f) except as provided in Exhibit CSection 6.01, any Liabilities of Seller or the Business for any present or former employees, directors, agents or independent contractors of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, workers’ compensation, severance, termination or other payments;
(g) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller prior to Closing;
(h) any trade accounts payable or accrued expenses of Seller (i) to the extent not accounted for in the Post-Closing Working Capital Adjustment; (ii) which constitute intercompany payables owing to Affiliates of Seller; (iii) which constitute debt, loans or credit facilities to financial institutions; or (iv) which did not arise in the ordinary course of business;
(i) any Liabilities of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement unless Buyer is receiving the economic benefit thereof in accordance with Section 2.11;
(j) All any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Seller Indemnitees;
(k) any Liabilities under the Seller Excluded Contracts or any other Contracts or any Intellectual Property Licenses (i) which are not validly and its Affiliates related effectively assigned to Buyer pursuant to this Agreement unless Buyer is receiving the Green Shift License Agreement economic benefit thereof in accordance with Section 2.11; or (ii) to the extent such Liabilities arose from the operation arise out of the Ethanol Plant or the Business relate to a breach by Seller of such Contracts or Intellectual Property Licenses prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM ActionsClosing;
(l) All any Liabilities associated with debt, loans or credit facilities of Seller and/or the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Business owing to financial institutions; and
(m) All any Liabilities accruing, arising out of, in respect of or related in connection with the failure by Seller or any of its Affiliates to the ownership, possession, use, operation comply with any Law or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateGovernmental Order.
Appears in 1 contract
Samples: Asset Purchase Agreement (Information Services Group Inc.)
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities, and that Buyer is shall not a legal successor assume or become obligated with respect to any other obligation or liability of Seller of any nature whatsoever and is assuming only Seller shall retain and shall pay, discharge and perform all liabilities not specifically included in the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include, including, without limitation, the following:
(a) any Liabilities liability or obligation under any Assumed Seller Contract which arises after the Effective Time but which arises out of or relates to any act or omission which occurred on or prior to the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerEffective Time;
(b) any Liabilities of the liability or obligation under any Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyContract that is not an Assumed Seller Contract;
(c) any Liabilities current liabilities and obligations of Seller not specifically included in the calculation of the Seller for Intercompany AccountsNet Working Capital Amount;
(d) any Liabilities liability or obligation of Seller for Taxes, including (i) any Taxes arising as a result of Seller’s operation of its business or ownership of the Assets prior to the Effective Time, (ii) any Taxes that will arise as a result of the sale of the Assets pursuant to this Agreement, (iii) any deferred Taxes of any nature, and (iv) any Taxes relating to the Post-Closing Seller for asset retirement obligations related to railcarsTax Returns;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character claims or description (whether known potential claims for medical malpractice or unknown, accrued, absolute, contingent or otherwise) general liability to the extent relating to periods prior to the Effective Time;
(f) any liabilities or obligations associated with or arising out of any of the Excluded Assets;
(g) liabilities and obligations of Seller in respect of periods prior to the Effective Time arising under the terms of the Medicare, Medicaid, CHAMPUS/TriCare, Blue Cross, or any other third party payor programs, whether governmental or non-governmental, including any claim, penalty or sanction relating to any claim for overpayment, any cost report relating to a period prior to Effective Time, and Seller’s terminating cost report for the Facility;
(h) any obligation or liability asserted under the federal Hxxx-Xxxxxx program or other restricted grant and loan programs with respect to the ownership or operation of the Purchased Assets Facility or the conduct of the Business prior to the ClosingAssets;
(fi) all Liabilities of Seller any liability or obligation under any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities Environmental Law arising out of or relating to the operation of Seller’s business or associated with the Excluded AssetsSeller’s leasing, ownership or operation of real property;
(hj) all Liabilities except as set forth in Section 1.3(c), any liability or obligation under the Employee Benefit Plans or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, employee stock option or profit sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for Seller’s employees or former employees or both;
(k) except as otherwise provided herein, any liability or obligation under any employment, severance, retention or termination agreement with any employee of Seller;
(l) any liability or obligation arising out of or relating to any employee grievance with respect to (i) Taxes the employees of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise or not the affected employees are hired by Law Buyer;
(m) any liability or as agreed obligation to by the parties hereto under Section 8.4(aany Seller Partner (or Affiliate thereof) or other provisions Related Person of this Agreement; Seller not assumed by Buyer pursuant to Section 1.3;
(n) any liability or obligation to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Seller;
(ivo) any liability or obligation to distribute to the Seller Partners or otherwise apply all or any part of the consideration received hereunder;
(p) any liability or obligation arising out of any Proceeding pending as of the Effective Time, whether or not set forth in any of the Schedules attached hereto, or any Proceeding commenced after the Effective Time and arising out of, or relating to, any occurrence or event happening prior to the Effective Time;
(q) any liability or obligation arising out of or resulting from Seller’s compliance or non-compliance with any Legal Requirement or Order of any Governmental Authority;
(r) all Taxes attributable obligations of Seller for borrowed money;
(s) any intercompany liabilities and obligations owing by Seller to AMG;
(t) all liabilities and obligations relating to any Tax period (oral agreements, oral contracts or portion thereof) ending on or before the Closing Date of oral understandings with any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (referral sources including, but not limited to, Treasury Regulations physicians, unless reduced to writing and expressly assumed as part of the Assumed Seller Contracts;
(u) any liability arising out of the act of assignment of any of the Assumed Seller Contracts to Buyer, provided that Section 1.1502-6 or comparable federal, state, local or foreign Law) 9.12 shall apply with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities assignment of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Contracts; and
(mv) All Liabilities accruing, arising out any liability or obligation of Seller based upon Seller’s acts or related to omissions occurring after the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateEffective Time.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by this Agreement involve a purchase provisions of -------------------- Sections 2.1 and sale of assets2.2, Buyer shall not assume, and that Buyer is not a legal successor of Seller Sellers shall remain liable for, any and is assuming only the Assumed Liabilities all liabilities, obligations, claims and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, commitments (whether known or unknown, absolute or contingent, liquidated or otherwise, and whether presently existing whenever asserted) of or hereafter arising. All such against the Assets, the Business and Sellers other liabilities than the Lease Obligations and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable Assumed Liabilities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “"Excluded Liabilities”"). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
the following: (bi) any Liabilities obligation under agreements and instruments included in the Excluded Assets, including all obligations under the Employee Plans and all employee benefit plans with respect to which any Seller or any other entity which, together with any Seller that is treated as a single employer under Section 414 of the Seller relating to its performance under this Code, has any liability or obligation; (ii) any liabilities or obligations of Sellers arising or incurred in connection with the negotiation, preparation and execution of the Agreement and the Transaction Documents and consummation of the transactions contemplated hereby hereby, including without limitation the fees and thereby;
expenses of Sellers' counsel, accountants, financial advisers and other experts; (ciii) royalty liabilities for any Liabilities of period on or prior the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character Closing Date or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller)Locations; (iiiv) Taxes other than liabilities and obligations under Other Assumed Leases (to the extent that such liabilities and obligations are attributable to periods from and after the Closing Date), any non-current liabilities arising out of or relating to the BusinessExcluded Locations and any liability or obligation that are specifically listed on Schedule 2.3; (v) any liability or obligation ------------ (including any investigative or remedial obligation) arising under any applicable Environmental Laws (as defined in Section 3.19), except where the Assets facts or conditions underlying such liability or obligation are solely caused by the Assumed Liabilities for any Tax period (or portion thereof) ending on or before operation of the Acquired Stores by Buyer after the Closing Date; (iiivi) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or any indebtedness other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) than with respect to Liabilities the capital leases listed on Schedule 2.2(iii); (vii) any liability or relationships existing obligation arising out ----------------- of or relating to any litigation which is based upon events or circumstances occurring on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related relating to the ownership, possession, use, operation Excluded Locations; (viii) any liability or condition obligation arising out of or relating to any intercompany obligation between Sellers or any of their Affiliates; and (ix) any liability of Sellers for Taxes for any period on or prior the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to Closing Date or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior relating to the Closing Date.Excluded Locations. ARTICLE 3 ---------
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is Purchaser will not a legal successor of Seller and is assuming only the Assumed Liabilities and not assume or be liable for any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverfollowing Liabilities (collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:):
(ai) any Liabilities of Seller or any of its affiliates (including Acquired Subsidiaries) to the Seller for costs and expenses incurred (extent arising out of, relating to or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors otherwise in connection with any way in respect of the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerExcluded Assets;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(fii) all Liabilities of Seller or any of its Affiliates under affiliates (including Acquired Subsidiaries) arising out of, relating to or otherwise in any way in respect of Contracts included in the Assumed Contracts Acquired Assets to the extent required to be paid such Liabilities (1) arise out of events or performed prior to Closingconditions occurring before the Closing Date or arise out of the operation of the Automotive Business before the Closing Date, (2) arise, mature or become due before the Closing Date or (3) are not reflected in Closing Working Capital;
(giii) all Liabilities in respect of lawsuits, actions, arbitrations and proceedings arising out of, relating to or otherwise in any way in respect of the Automotive Business or the operation or use of the Acquired Assets prior to the Closing Date, other than Liabilities in respect of (A) lawsuits, actions, arbitrations and proceedings with respect to Transferred Employees whether or not arising prior to the Closing Date, other than any such non-worker’s compensation and non-grievance claims, lawsuits, actions, or proceedings pending on the Closing Date, and (B) pending claims under any worker’s compensation statute or grievances under any Collective Bargaining Agreement;
(iv) Product Liability Claims with respect to products manufactured or sold by Seller or its affiliates (including Acquired Subsidiaries) prior to Closing in excess of the amount accrued for such Liabilities on the May Balance Sheet or as reserved or reflected in the Closing Working Capital;
(v) all Retained Environmental Liabilities and the portion of the Shared Environmental Liabilities for which Seller is liable in accordance with Section 12.5(b)(i);
(vi) all Liabilities not attributable to the conduct of the Automotive Business or the Acquired Assets (including without limitation any such Liability arising from previously owned or operated businesses or facilities that are not part of the Automotive Business);
(vii) all Liabilities related to Employee Benefit Plans contemplated to be retained by Seller in Sections 6.1 and 6.2 of this Agreement;
(viii) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out guarantee of the consummation Indebtedness of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending Beijing Wanyuan GDX Automotive Sealing Products Company Limited outstanding on or before the Closing Date to the extent, if any, that such guarantee relates to an amount of any Person imposed Indebtedness of such Acquired Subsidiary outstanding on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities excess of the Seller and its Affiliates related amount of such Acquired Subsidiary’s total outstanding Indebtedness that is allocable to the Green Shift License Agreement to the extent Seller’s indirect percentage interest in such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateAcquired Subsidiary.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by contrary in this Agreement involve a purchase and sale of assetsAgreement, the Purchaser shall not assume or in any way be responsible for, and that Buyer is not a legal successor the Sellers shall remain obligated to pay, honor, perform and discharge, all of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverSellers (other than the Assumed Liabilities) (collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include, including, without limitation:
(a) any Liabilities arising out of or relating to each Seller’s ownership, use or operation of the Seller for costs Business and expenses incurred the Purchased Assets, in each case prior to the Closing arising by operation of law under any common law or statutory doctrine (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with other than the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerAssumed Liabilities);
(b) any Liabilities based upon, relating to, arising under or with respect to the Excluded Assets or the ownership, operation or use of any businesses of the Seller relating to its performance under this Agreement and Sellers or any of their Affiliates, other than the Transaction Documents and Business, whether before, at or after the transactions contemplated hereby and therebyClosing;
(c) any Liabilities all payables and indebtedness of the Seller for Intercompany AccountsSellers;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character directly or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or indirectly arising out of the ownership or operation related to any breach of the Purchased Assets Contract occurring or the conduct of the Business existing prior to the Closing;
(fe) all Liabilities of Seller any liabilities or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to obligations for (i) Taxes of Seller (relating to the Business, the Purchased Assets or any stockholder memberthe Assumed Liabilities for the Pre-Closing Tax Period, or Affiliate of Seller); (ii) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for the portion of any Tax period (or portion thereof) Straddle Period ending on or before and including the Closing Date; Date and (iii) any other Taxes of the Sellers or any of their equity holders or Affiliates, including Taxes that arise out as a result of the consummation sale of the transactions contemplated hereby which constitute obligations of, and are payable by, Business or the Seller, whether such Taxes arise by Law or as agreed Purchased Assets pursuant to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or ;
(ivf) all Taxes attributable to any Tax period (or portion thereof) ending on or before Liabilities of the Closing Date of any Person imposed on Buyer as a transferee or successorSellers based upon, by contract or pursuant to any Law (including, but not limited relating to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local arising under or foreign Law) with respect to Liabilities (i) any Seller Benefit Plan, (ii) the employment or relationships existing termination of employment of (x) any employee of any Seller employed by the Purchaser following the Closing with respect to periods on or prior to the Closing Date and (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by agreements entered into the Purchaser following the Closing at any time, and (iii) workers’ compensation claims, unemployment insurance premiums or transactions entered into any claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws of (x) any employee employed by the Purchaser following the Closing which relate to events occurring on or prior to the Closing Dateand (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchaser following the Closing which relate to events occurring at any time;
(g) any Liability based upon, arising under or with respect to any Environmental Law, including any Liability of the Sellers in any way pertaining to or arising from the acts, omissions or strict liability of any predecessor of the Sellers;
(h) any Liability based upon, arising under or with respect to any matter disclosed or required to be disclosed in Schedule 5.16; and 4306983-11
(i) all Liabilities of Seller and its Affiliates any Liability based upon, arising under or with respect to Employees as provided in Exhibit C;
(j) All Liabilities any warranty given or sold by the Sellers, regardless of the Seller and its Affiliates related whether any warranty claim has been made to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datedate.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ruths Hospitality Group, Inc.)
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.03 or any other provision in this Agreement involve a purchase to the contrary, Xxxxx shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform, or discharge any Liabilities of Seller and is assuming only of any kind or nature whatsoever other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Seller shall pay and satisfy in due course all Excluded Liabilities includethat Seller is obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
(a) any Liabilities all obligations related to accounts payable as of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing Date;
(b) any Liabilities of Seller arising or incurred in connection with the Seller relating to its negotiation, preparation, investigation, and performance under of this Agreement and Agreement, the Transaction Documents Ancillary Documents, and the transactions contemplated hereby and thereby, including fees and expenses of Seller’s counsel, accountants, consultants, and advisers;
(c) any Liability for (i) Taxes of Seller or Taxes relating to the Business, the Purchased Assets, or the Assumed Liabilities for any Pre-Closing Tax Period, or (ii) other Taxes of the Seller of any kind or description (including any Liability for Intercompany AccountsTaxes of Seller that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(d) any Liabilities of to the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) extent relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Excluded Assets, including Environmental Claims and Liabilities of Seller or any of its Affiliates under the Assumed Contracts Environmental Laws to the extent required related to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(he) all any Liabilities with (whether arising before or after the Closing) in respect to (i) Taxes of Seller (any pending or any stockholder memberthreatened Action arising out of, relating to, or Affiliate otherwise in respect of Seller); (ii) Taxes relating the ownership or operation of the Business or the Purchased Assets to the Business, the Assets extent such Action relates to such ownership or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into operation on or prior to the Closing Date;
(if) all any Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant Seller, whether arising before or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before after the Closing, including Liabilities for personal injury under or death in connection with (x) the issues raised, considered, decided, or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing appealed from RCA Order No. U-16-094(9)/U-17-008(13) and any liabilities and obligations, including any products liability for defective or offOrder No. U-16-spec Inventories sold to Third Parties prior to the Closing Date.094(10)/U-17-008(14) and
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding anything contained in this Agreement involve a purchase and sale to the contrary, the Purchaser shall not assume or agree to pay, perform or otherwise discharge any liabilities or obligations of assets, and that Buyer is not a legal successor of any Seller and is assuming only or any Affiliate thereof other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as other than Assumed Liabilities, the “Excluded Liabilities”). The Without limiting the foregoing, the Purchaser does not assume or agree to pay, perform or otherwise discharge the liabilities or obligations of the Sellers with respect to, arising out of or relating to the following Excluded Liabilities includeLiabilities:
(a) any Liabilities all indebtedness for borrowed money of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerSellers;
(b) any Liabilities all guarantees of third party indebtedness made by the Sellers and reimbursement obligations to guarantors of the Seller relating to its performance Sellers’ obligations or under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyletters of credit;
(c) any Liabilities all Actions pending on or before the Closing Date against the Sellers or to the extent against or giving rise to liabilities or obligations of the Seller for Intercompany AccountsBusiness based on acts or omissions prior to the Closing Date even if instituted after the Closing Date;
(d) all liabilities or obligations to any Liabilities current or former owner of capital stock or other equity interests of the Seller Sellers or any securities convertible into, exchangeable or exercisable for asset retirement shares of capital stock or other equity interests of the Sellers, any current or former holder of indebtedness for borrowed money of the Sellers or, in respect of obligations related to railcarsfor indemnification or advancement of expenses, any current or former officer or director of the Sellers;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character drafts or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of checks outstanding at the ownership or operation of Closing under which the Purchased Assets or the conduct of the Business prior to the ClosingSellers are obligated;
(f) all Liabilities obligations of Seller the Sellers under futures contracts, options on futures, swap agreements or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closingforward sale agreements;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of imposed on any Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating that relate to the BusinessAcquired Assets, the Assets Business or the Assumed Liabilities for any Tax period taxable periods (or portion portions thereof) ending on or before the Closing Date; , and (ii) Taxes or payments under any Tax allocation, sharing or similar agreement to which the Sellers are a party that relate to the Acquired Assets, the Business or the Assumed Liabilities;
(h) all liabilities and obligations relating to either (i) the Benefit Plans, (ii) the employment or termination of any current or former employee of the Sellers or (iii) Taxes that arise out the employment or termination of any employee of the Sellers to the extent arising prior to the Closing Date; and
(i) all costs, fees and expenses incurred by the Sellers in connection with the administration of the Chapter 11 Cases or the negotiation, execution and consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or and
(ivj) all Taxes attributable liabilities or obligations to any Tax period (the extent relating to the ownership, possession or portion thereof) ending on use of the Excluded Assets, or before the Closing Date ownership, possession or use of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or the Acquired Assets prior to the Closing Date (including claims related to or by agreements entered into arising from rebates, chargebacks, credits, product returns and expirations, death, personal injury or other product liabilities, in each case to the extent relating to events or transactions entered into on or occurring prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date).
Appears in 1 contract
Samples: Acquisition Agreement (Savient Pharmaceuticals Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any other provision of -------------------- this Agreement involve a purchase and sale of assetsAgreement, and that Buyer is not a legal successor of Seller and is assuming only except for the Assumed Liabilities and expressly referred to in Section 1.4, ABS shall not any other Liabilities of the Seller assume, or 4 any of its Affiliates of any nature whatsoeverotherwise be responsible for, Oakland's or Sacramento's liabilities or obligations, whether actual or contingent, matured or unmatured, liquidated or unliquidated, known or unknown, absolute or contingentrelated or unrelated to the Business or the Assets, and whether presently existing arising out of occurrences prior to, at or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of after the Seller and/or its Affiliatesdate hereof (collectively, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “"Excluded Liabilities”"). The , which Excluded Liabilities include, without limitation:
(a) any Liabilities All liabilities and obligations of the Seller for costs and expenses incurred (Oakland or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities Sacramento arising out of or relating related to or associated with any of the Excluded Assets;
(hb) all Liabilities with All liabilities and obligations of Oakland or Sacramento in respect to (i) Taxes of Seller (any costs arising out of or any stockholder member, or Affiliate of Seller); (ii) Taxes relating related to the Businesssale and transfer of the Assets, the Assets including without limitation, all broker's or the Assumed Liabilities for finder's fees and expenses and all fees and expenses of any attorneys and accountants of Oakland or Sacramento;
(c) All liabilities and obligations of Oakland or Sacramento in respect of any Tax (as defined in Section 3.10) attributable to any period (or portion thereof) ending on or before the Closing Date; ;
(d) All liabilities and obligations to or in respect of any employees or former employees, agents or independent contractors of, or other persons providing services to, Oakland, Sacramento or the Business, including, without limitation, (i) any employment, incentive or severance agreement, whether or not written, between Oakland or Sacramento and any person, (ii) all liabilities under any Oakland Employee Benefit Plan (as defined in Section 3.17(a)(i)) or Sacramento Employee Benefit Plan (as defined in Section 3.17(a)(ii)) at any time maintained, contributed to or required to be contributed to by or with respect to Oakland or Sacramento or under which either Oakland or Sacramento may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Oakland's or Sacramento's withdrawal or partial withdrawal from or termination of any Employee Benefit Plan and (iii) Taxes that arise out all claims of the consummation of the transactions contemplated hereby an unfair labor practice, or any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination law or regulation, which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing shall have been asserted on or prior to the date that is 60 days following the Closing Date or by agreements entered into is based on acts or transactions entered into omissions that occurred on or prior to the date that is 60 days following the Closing Date;
(e) All liabilities and obligations of Oakland or Sacramento relating to any claim, suit, litigation, proceeding or investigation pending on the date hereof, or instituted hereafter, that is based on events or conditions occurring or existing in connection with, arising out of, resulting from or relating to, directly or indirectly, the operation of the Business prior to the Closing Date, or the ownership, possession, use or sale of the Assets prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(jf) All Liabilities liabilities and obligations of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant Oakland or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, Sacramento arising out of or related to the ownershipany indebtedness for borrowed money owing to Oakland or Sacramento or any of their affiliates;
(g) All claims, possessionliabilities or obligations (including, usewithout limitation, operation or condition fines, penalties, punitive damages, legal fees and expenses and all other damages and losses), irrespective of the Purchased Assetsactual or alleged basis therefor, that is based on events or conditions occurring or existing prior to the Ethanol Plant Closing in connection with, arising out of, resulting from or relating to, directly or indirectly, (i) any applicable laws regulating or establishing quality criteria or standards for air, water, land, noise or industrial safety and health, providing for remediation of environmental conditions or otherwise relating to the Business before environment, whether existing as of the Closingdate hereof or subsequently amended, including Liabilities for personal enacted or promulgated, (ii) employee health and safety or (iii) compliance with any laws or regulations relating to any of the foregoing;
(h) All liabilities and obligations arising from or relating to any injury to or death of any person or damage to property or destruction of any Third Party attributable to property, whether based on negligence, breach of warranty, strict liability, enterprise liability or arising out any other legal or equitable theory arising, in whole or in part, from defects in products sold or services performed by or on behalf of the ownership Oakland or operation of the Purchased Assets, the Ethanol Plant Sacramento or the Business before the Closing and any liabilities and obligations, including any products liability for defective other person or off-spec Inventories sold to Third Parties entity on or prior to the Closing Date, or arising from any other cause, irrespective of the act and/or alleged basis therefor, that is based in whole or in part on events or conditions occurring or existing on or prior to the Closing Date, including without limitation any liabilities arising (on a date of occurrence basis or otherwise) relating to the use or misuse of equipment or to traffic accidents; and
(i) Without limitation by the specific enumeration of the foregoing, any liabilities not expressly assumed by, or subject to indemnification obligations of, ABS.
Appears in 1 contract
Samples: Asset Purchase Agreement (Superior Trucks & Auto Supply Inc)
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.03 or any other provision in this Agreement involve a purchase Agreement, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any kind or nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such whatsoever other liabilities and obligations shall be retained by and remain liabilities and obligations of than the Seller and/or its Affiliates, as applicable Assumed Liabilities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Seller shall (and the Stockholder shall cause Seller to), cause each of its Affiliates to pay, and pay and satisfy as and when due all Excluded Liabilities which each is respectively obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but shall not be limited to, the following Liabilities of Seller or Stockholder or any Affiliate:
(a) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including the fees and expenses of counsel, accountants, consultants, advisers and others;
(cb) any Liabilities of the Seller Liability for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, Business for any period or the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax period (or portion thereof) ending on or before the Closing DatePeriod; (iiiii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and by this Agreement or that are payable by, the Seller, whether such Taxes arise by Law or as agreed responsibility of Seller pursuant to by the parties hereto under Section 8.4(a) or other provisions of this Agreement6.09; or (iviii) all other Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on kind or description (including any Liability for Taxes that becomes a Liability of Buyer as a under any common law doctrine of de facto merger or transferee or successor, successor liability or otherwise by operation of contract or pursuant Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Law (includingLiabilities in respect of any pending or threatened Action arising out of, but not limited to, Treasury Regulations Section 1.1502-6 relating to or comparable federal, state, local otherwise in respect of the operation of the Business or foreign Law) with respect to Liabilities or relationships existing on or prior the Purchased Assets to the Closing Date or by agreements entered into or transactions entered into extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property regardless of the basis therefore and whether or not such claim arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller;
(g) any Liabilities arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(h) any Liabilities for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, commissions, bonuses, expense reimbursement, paid sick leave, accrued vacation or other paid time off, workers’ compensation, severance, retention, termination or other payments;
(i) all any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of Seller and its Affiliates with respect or relating to Employees as provided in Exhibit Cfacts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising out of any actions or omissions of Seller;
(j) All Liabilities any trade accounts payable of Seller not otherwise set forth on Section 2.03(a) of the Disclosure Schedules;
(k) any Liabilities relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by Sellers’ customers to Seller on or before the Closing Date; (ii) did not arise in the ordinary course of the Business; or (iii) are not validly and its Affiliates related effectively assigned to Buyer pursuant to this Agreement;
(l) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 7.02 as Seller Indemnitees;
(m) any Liabilities under any other Contract, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the Green Shift License Agreement representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arose from the operation arise out of the Ethanol Plant or the Business relate to a breach by Seller of such Contracts prior to the Closing Date;
(kn) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All any Liabilities associated with debt, loans or credit facilities of Seller and/or the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Business owing to financial institutions; and
(mo) All any Liabilities accruing, arising out of, in respect of or related in connection with the failure by Seller or any of its Affiliates to the ownership, possession, use, operation comply with any Law or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateGovernmental Order.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.03 or any other provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any kind or nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such whatsoever other liabilities and obligations shall be retained by and remain liabilities and obligations of than the Seller and/or its Affiliates, as applicable Assumed Liabilities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities related to the Business which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(cb) any Liabilities of the Seller Liability for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, equityholder or Affiliate of Seller); (ii) Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax period (or portion thereof) ending on or before the Closing DatePeriod; (iiiii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and or that are payable by, the Seller, whether such Taxes arise by Law or as agreed responsibility of Seller pursuant to by the parties hereto under Section 8.4(a) or other provisions of this Agreement6.14; or (iviii) all other Taxes attributable to any Tax period of Seller (or portion thereofany equityholder or Affiliate of Seller) ending on or before the Closing Date of any Person imposed on kind or description (including any Liability for Taxes of Seller (or any equityholder or Affiliate of Seller) that becomes a Liability of Buyer as a under any common law doctrine of de facto merger or transferee or successor, successor liability or otherwise by operation of contract or pursuant Law);
(c) any Liabilities arising out of or relating to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 Seller’s ownership or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing operation of the Business and the Purchased Assets on or prior to the Closing Date Date;
(d) any Liabilities relating to or arising out of the any asset of Seller that are not Purchased Assets;
(e) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(f) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by agreements entered into reason of the improper performance or transactions entered into malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller on or prior to the Closing Date;
(g) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller on or prior to the Closing Date;
(h) any Liabilities of Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee(s) of Seller on or prior to the Closing Date;
(i) all any Liabilities of Seller and its Affiliates on or prior to the Closing Date for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with respect to Employees as provided in Exhibit Cany claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(j) All any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller;
(k) any trade accounts payable of Seller to third parties in connection with the Business that remain unpaid as of the Closing Date (the “Accounts Payable”);
(l) any Liabilities of the Seller and its Affiliates related Business on or prior to the Green Shift License Agreement Closing Date relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Seller Indemnitees;
(n) any Liabilities on or prior to the Closing Date under (i) the Excluded Contracts or (ii) any other Contracts, including Intellectual Property Licenses, (A) which are not validly and effectively assigned to Buyer pursuant to this Agreement; or (B) to the extent such Liabilities arose from arise out of or relate to a breach by Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, loans or credit facilities of Seller and/or the operation of the Ethanol Plant Purchased Assets owing to financial institutions;
(p) any Liabilities on or the Business prior to the Closing Date;
(k) All Liabilities Date arising out of, in respect of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated or in connection with the matters described in that certain Consent Agreement and Final failure by Seller or any of its Affiliates to comply with any Law or Governmental Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(mq) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including any Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSeller’s Selling Expenses.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsPurchaser shall not assume or be obligated to pay, and that Buyer is not a legal successor perform or otherwise discharge any liabilities or obligations of Seller other than the Assumed Liabilities. All obligations and is assuming only liabilities of Seller other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein are referred to herein as the “Excluded Liabilities”), all of which Excluded Liabilities shall remain the sole responsibility of Seller. The Excluded Liabilities include, without limitation, the following:
(a) Any liabilities or obligations of Seller in respect of any Liabilities Excluded Assets or other assets which are not Assets and Seller’s ownership, operation and conduct of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors any business in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokertherewith or therefrom;
(b) Except as otherwise specifically set forth in Section 2.4(a), all liabilities or obligations arising prior to the Effective Date under any Liabilities of the Seller relating to its performance agreements, contracts, undertakings and licenses assumed by Purchaser under this Agreement Agreement, including the Facilities Contracts and the Transaction Documents and the transactions contemplated hereby and therebyTransferable Permits;
(c) any Liabilities Any fines, penalties or costs (other than Taxes), including costs for environmental mitigation projects, imposed by a Governmental Authority with respect to the Assets resulting from (i) an investigation, proceeding, request for information or inspection before or by a Governmental Authority, but only relating to actions or omissions or conditions existing prior to the Effective Date (and only for the period prior to the Effective Date and not to the extent continuing past the Effective Date); or (ii) violations of the Seller for Intercompany Accountsapplicable Law or illegal acts committed by Seller;
(d) any Liabilities Seller’s share of the Seller costs of removal of, or to conduct or perform Remediation of any Environmental Conditions or Hazardous Substances at the Landfill if the Facilities Owners are required to remove such Landfill or to conduct or perform Remediation of any Environmental Conditions or Hazardous Substances at the Landfill under Laws, the Facilities Lease or the § 323 Grants (collectively, the “Landfill Obligations”), except for asset retirement obligations related to railcarsthe portion thereof, if any, described in Section 2.3(d);
(e) except as expressly set forth All Pre-Closing Environmental Liabilities, excluding any Pre-Closing Environmental Liabilities assumed by Purchaser in this AgreementSections 2.3(c), all Indebtedness2.3(d), Contracts 2.3(e) and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing2.3(f);
(f) all Liabilities Any liability of Seller or arising out of a breach by Seller of any of its Affiliates obligations under this Agreement or the Assumed Contracts to the extent required to be paid or performed prior to ClosingAncillary Agreements;
(g) all Liabilities arising out Any obligation of or relating Seller to or associated with indemnify any Person who is a member of the Excluded AssetsPurchaser Group pursuant to Article 7;
(h) all Liabilities with Any liabilities or obligations in respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out ’s share of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under items prorated in Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date3.6(a);
(i) all Liabilities Taxes attributable to the ownership, operation or use of the Assets before the Effective Date (except for Taxes for which Purchaser is liable pursuant to Section 3.6, including Purchaser’s Income Taxes) and any Taxes for which Seller and its Affiliates with respect to Employees as provided in Exhibit C;is liable under Section 6.3; and
(j) All Liabilities of the other liabilities expressly allocated to Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datethis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Arizona Public Service Co)
Excluded Liabilities. The parties acknowledge that Neither the transactions contemplated by this Agreement involve a purchase and sale Buyer nor any of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not its Affiliates shall assume any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever(such unassumed Liabilities, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”)) other than those specifically set forth in Section 2.3. The Excluded Without limiting the generality of the foregoing, in no event shall the Buyer or any of its Affiliates assume or incur any Liability in respect of, and the Seller and its Affiliates shall remain bound by and liable for, and shall pay, discharge or perform when due, the following Liabilities includeof the Seller:
(a) all Liabilities for Taxes imposed on or relating to the Business or the Purchased Assets for any taxable period or portion thereof ending on or before the Effective Date, and all Liabilities of for Taxes imposed on or relating to the Seller or any of its Affiliates for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokertaxable period;
(b) any all Liabilities in respect of the Seller relating to its performance under this Agreement Excluded Assets and the Transaction Documents and the transactions contemplated hereby and therebyYahoo Payables;
(c) any Liabilities of the Seller all Liability for Intercompany Accounts;
(d) any Liabilities all Indebtedness of the Seller for asset retirement obligations related to railcarsBusiness or the Seller;
(e) except as expressly set forth in this Agreementall product Liability, warranty and similar claims for damages or injury to person or property, claims of infringement of Intellectual Property rights and all Indebtednessother Liabilities, Contracts and Liabilities regardless of when made or asserted, which arise out of or are based upon any kindevents occurring or actions taken or omitted to be taken by the Seller or its Affiliates, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or otherwise arising out of the ownership or operation of the Purchased Assets or incurred in connection with the conduct of the Business prior to Business, on or before the ClosingEffective Date;
(f) all Liabilities arising out of Seller (i) the ownership or operation of the Business or the ownership, use or operation of the Purchased Assets at any of its Affiliates under the Assumed Contracts time prior to the extent required to be paid Effective Time or performed prior to Closing(ii) the ownership, operation or condition of any real property currently or formerly owned, operated or leased by the Seller;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assetsresulting from any Benefit Plan;
(h) except as specifically provided in Section 2.3(c), all compensation related Liabilities with respect (including deferred or accrued bonuses) and all other employee-related Liabilities (including, severance, salaries, commissions, worker’s compensation, COBRA benefits and compensation related liabilities, whether accrued or deferred, including among others, deferred bonuses), whether or not arising under Law or Contract, owing to the Seller’s Employees and consultants;
(i) Taxes all Liabilities owed by the Seller or the Business to any Affiliate of Seller (or any stockholder memberthe Seller, or to any family member of an Affiliate of the Seller); and
(iij) Taxes relating to all Liabilities of the BusinessSeller under this Agreement, the Assets Ancillary Agreements and any other agreement, certificate, instrument or other document executed and delivered by the Assumed Seller in connection with the transactions contemplated hereby or thereby and all Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise arising out of or incurred in connection with the negotiation, preparation and execution of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closingthereby, including Liabilities for personal injury or death or damage to property Taxes and fees and expenses of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assetscounsel, the Ethanol Plant or the Business before the Closing accountants and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateother experts.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by contrary in this Agreement involve a purchase Agreement, the Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor of Seller and is assuming only the Assumed perform or discharge any Liabilities and not any other Liabilities or obligations of the Seller or 4 any of its Affiliates of any nature whatsoeverother than the Assumed Liabilities (collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Without limiting the generality of the foregoing, the Excluded Liabilities includeinclude the following:
(ai) any Liabilities or obligations arising out of or relating to the Seller’s or its Affiliates’ ownership and operation of the Seller for costs and expenses incurred (or Transferred Business and/or the Purchased Assets prior to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing;
(bii) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement or obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership Excluded Assets (including all Liabilities and obligations related to products, services and business lines related to haptic devices);
(iii) (A) any Taxes (other than Prorated Taxes and Transfer Taxes) with respect to the ownership, operation, possession or operation use of the Transferred Business, the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder memberLiabilities, or Affiliate of Seller); (ii) Taxes relating to the Businessin each case, the Assets or the Assumed Liabilities for any Pre-Closing Tax period (or portion thereof) ending on or before the Closing Date; (iii) Period, including any Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer or payable as a transferee or successor, by contract Contract or pursuant to any Law or otherwise, in respect of the Transferred Business, the Purchased Assets or the Assumed Liabilities, which Taxes relate to an event or transaction occurring before the Closing Date; (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign LawB) with respect to Liabilities or relationships existing on or any Prorated Taxes for the portion of any Straddle Period prior to the Closing Date or by agreements entered into or transactions entered into on or prior (determined in accordance with Section 7.04); and (C) any Transfer Taxes that are the responsibility of the Seller pursuant to the Closing DateSection 7.03;
(iiv) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities the Indebtedness of the Seller and its Affiliates (other than the Specified Indebtedness) and the Employee Payments;
(v) any past-due royalties or other amounts that are payable pursuant to the terms of an Assumed Contract which relate to pre-Closing periods;
(vi) any liabilities or obligations of the Seller and its Affiliates arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the Transactions, including the Seller Transaction Expenses;
(vii) any claim, demand or Action by a third party related to fraud, fraudulent inducement or intentional misrepresentation, or any allegations thereof, involving the Green Shift License Agreement to Transferred Business, the extent such Liabilities arose from the operation of the Ethanol Plant Purchased Assets or the Business Transactions, and related to facts, events or circumstances arising or occurring prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Closing; and
(mviii) All all Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateobligations set forth on Schedule 2.02(b).
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase and sale of assetsto the contrary, and that Buyer is not a legal successor of Seller and Purchaser is assuming only the Assumed Liabilities and is not assuming, and shall not be deemed to have assumed, any other Liabilities of Seller of whatever nature (whether arising prior to, at the Seller time of, or 4 any of its Affiliates of any nature whatsoeversubsequent to Closing), whether absolute, accrued, contingent or otherwise, whether due or to become due and whether or not known or unknown, absolute unknown or contingent, and whether presently currently existing or hereafter arising. All such other liabilities arising or matured or unmatured, direct or indirect, and obligations Seller shall be retained by solely and remain liabilities exclusively liable for any and obligations all such Liabilities, including those Liabilities, other than the Assumed Liabilities, related to, arising out of or in connection with the operation of the Seller and/or its AffiliatesBusiness or the Purchased Assets (including the use and ownership thereof) at any time prior to the Closing Date, as applicable and including those Liabilities set forth below (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as collectively, the “Excluded Liabilities”). The Excluded Liabilities include:):
(a) any all Liabilities arising out of, related to or otherwise in respect of the Purchased Assets or the Business arising prior to the Closing other than the Assumed Liabilities, including all Liabilities arising under the accounts payable that are owed to the parties set forth on Schedule 1.4(a);
(b) all Liabilities of Seller related to or otherwise arising, whether before, on or after the Closing, out of, or in connection with, any of the Excluded Assets;
(c) any and all Liabilities for Indebtedness with respect to borrowed money and any intercompany Indebtedness among Seller and any of its Subsidiaries;
(d) all guarantees of third party obligations, all guarantees of obligations of any Affiliates of Seller, and reimbursement obligations to guarantors of Seller’s obligations or under letters of credit;
(e) any and all Liabilities for costs and expenses incurred (i) Taxes of Seller arising in or related to be incurredany taxable period, or portion thereof, ending on or before the Closing Date, (ii) for services performed by its legal, financial, accounting and investment banking advisors any Taxes arising in connection with the consummation of the transactions contemplated by this Agreement, including(iii) Taxes imposed on any Person that are the responsibility of Seller pursuant to Section 11.1(b), without limitation, any broker’s fees of Seller’s broker;
(biv) any Liabilities of the Seller relating Taxes arising from or attributable to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct operation of the Business prior to for any taxable period, or portion thereof, ending on or before the ClosingClosing Date, and (v) Taxes arising from or in connection with an Excluded Asset and, other than as set forth in Section 1.3, any Taxes of Seller arising on or after the Closing Date;
(f) any and all Liabilities of Seller resulting from any failure to comply with applicable “bulk sale”, “bulk transfer” or similar Law;
(g) any and all Liabilities of Seller in respect of Contracts that are not Assigned Contracts, including the Contracts set forth on Schedule 1.4(g);
(h) all Cure Costs not included in, and in excess of, the Assumed AP under Section 1.3;
(i) all Liabilities (excluding those set forth on Schedule 1.3(c)) related to (i) any current or former employees, officers, directors, independent contractors or other service providers of Seller or any of its Affiliates under (except for Liabilities pertaining to Transferred Employees and incurred after the Assumed Contracts Closing with respect to Transferred Employees solely in their capacity as employees of Purchaser or an Affiliate thereof), (ii) any Action brought by any Transferred Employee in connection with any act taken by Seller or any of its Affiliates at or prior to the Closing, (iii) the employment or termination of any Transferred Employee at or prior to the Closing or as a result of the transactions contemplated by this Agreement, (iv) any change in control, retention, success bonuses or similar obligations payable by Seller and its Affiliates to any Transferred Employee as a result of the transactions contemplated by this Agreement and (v) any Seller Plan;
(j) drafts or checks outstanding at the Closing (except to the extent an Assumed Liability or related to an Assigned Contract);
(k) all Liabilities under any futures contracts, options on futures, swap agreements or forward sale agreements;
(l) all Liabilities for fees, costs and expenses that have been incurred or that are incurred or owed by Seller in connection with this Agreement or the administration of the Bankruptcy Cases (including all fees and expenses of professionals engaged by Seller) and administrative expenses and priority claims accrued through the Closing Date and post-closing administrative wind-down expenses of the bankrupt estates pursuant to the Bankruptcy Code (which such amounts shall be paid by Seller) and all costs and expenses incurred in connection with (i) the negotiation, execution and consummation of the transactions contemplated under this Agreement and each of the other documents delivered in connection herewith, (ii) the preparation and submission of any filing or notice required to be paid made or performed prior given in connection with any of the transactions contemplated by this Agreement, and the obtaining of any consent required to Closingbe obtained in connection with any of such transactions, (iii) the negotiation, execution and consummation of the DIP Financing Agreement and (iv) the consummation of the transactions contemplated by this Agreement, including any retention bonuses, “success” fees, change of control payments and any other payment obligations of Seller payable as a result of the consummation of the transactions contemplated by this Agreement and the documents delivered in connection herewith;
(gm) any non-Ordinary Course of Business Liability of Seller arising in the Bankruptcy Cases;
(n) all Liabilities related to the WARN Act, to the extent applicable, for any action resulting from Employees’ separation of employment prior to or on the Closing Date;
(o) all Liabilities of Seller to its equity holders respecting dividends, distributions in liquidation, redemptions of interests, option payments or otherwise, and any liability of Seller pursuant to any Affiliate Agreement;
(p) all Liabilities arising out of or relating related to any business or associated with the Excluded Assetsproperty formerly owned or operated by Seller, any Affiliate or predecessor thereof, but not presently owned and operated by Seller;
(hq) all Liabilities with respect related to Claims, commercial disputes, actions, suits, arbitrations, litigation matters, proceedings or investigations (i) Taxes of Seller (or any stockholder memberin each case whether involving private parties, authorities, or Affiliate of Seller); (iiotherwise) Taxes relating to involving, against, or affecting any Purchased Asset, the Business, Seller (other than those involving, against or affecting any Transferred Employees arising after the Assets Closing) or the Assumed Liabilities for any Tax period (assets or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out properties of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law commenced, filed, initiated, or as agreed threatened before or after the Closing and whether related to by facts, events, or circumstances arising or occurring before or after the parties hereto under Section 8.4(a) or other provisions of this Agreement; or Closing, including the matters set forth on Schedule 1.4(q);
(ivr) all Taxes attributable obligations of Seller arising and to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or be performed prior to the Closing Date arising from or by agreements entered into or transactions entered into on or prior related to the Closing DateBusiness or the Purchased Assets;
(is) all Environmental Liabilities and Obligations;
(t) all Liabilities of Seller and or its Affiliates with respect predecessors arising out of any contract, agreement, Permit, franchise or claim that is not transferred to Employees Purchaser as provided in Exhibit Cpart of the Purchased Assets or, is not transferred to Purchaser because of any failure to obtain any third-party or governmental consent required for such transfer;
(ju) All all Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement or arising under any corporate restructuring process, including (i) any advisor fees, including financial advisor fees, consultant fees, legal fees and accounting fees and (ii) any other commitment that is not directly related to servicing or supporting customer accounts;
(v) all Liabilities and payment obligations related to or arising under any information technology assets owned or licensed to Seller, except to the extent such Liabilities arose from the operation of the Ethanol Plant assumed by Purchaser as Purchased Assets or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Assumed Liabilities; and
(mw) All any Liabilities accruing, arising out of or Seller related to the ownership, possession, use, operation operations of or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior otherwise related to the Closing Datebusiness of Ciber-CMC Joint Venture Corporation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciber Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding anything in this Agreement involve a purchase and sale of assetsto the contrary, Buyer shall not assume, and that Buyer is shall be deemed not a legal successor to have assumed, any Liabilities relating to the Business of Seller Sellers or any Affiliate of Sellers and is assuming only Sellers and their Affiliates shall be solely and exclusively liable with respect to all such Liabilities, other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever(collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded , including those Liabilities includeset forth as follows:
(a) any Liability of any Seller relating to any Excluded Asset;
(b) all Liabilities under Indebtedness of the type referred to in clause (a) of the definition thereof of Sellers (including any Indebtedness or accounts payable owing from any Seller to an Affiliate of such Seller);
(c) except for any Liabilities for Taxes that are Assumed Liabilities, all Tax Liabilities for Pre-Closing Tax Periods, including Pre-Closing Straddle Period Taxes, and any Tax Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with Sellers arising from the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any all Liabilities of the Seller for asset retirement obligations related Sellers relating to railcarsemployees of Excluded Subsidiaries and Sellers that are not Transferred Employees (“Excluded Employees”);
(e) except as expressly unless set forth in this Agreementon Schedule 2.1(c), all Indebtedness, Contracts and Liabilities of any kindSellers arising out of, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out with respect to (i) the employment or performance of services, or termination of employment or services by any Seller of any employee, or independent contractor on or before the ownership close of business on the Closing Date, (ii) employment or operation labor Actions accruing either directly or indirectly against Seller that relate to the period on or before the close of business on the Purchased Assets or the conduct Closing Date, irrespective of the Business whether such claims are made prior to or after the ClosingClosing and (iii) any Benefit Plan (including all Liabilities to the IRS or Department of Labor);
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to ClosingRejection Damages Claims;
(g) any tort Liabilities of any Seller based on any acts, omissions, or conditions occurring or existing prior to the Closing Date;
(h) all Environmental Liabilities relating to, resulting from, caused by or arising out of ownership, operation or control of the Business, to the extent accruing, arising out of or relating to events, occurrences, acts or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (omissions occurring or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities Actions against each Seller, any of Seller their respective assets, the Business and its Affiliates with respect to Employees as provided in Exhibit Cany of their past or present operations or activities;
(j) All Liabilities the obligations under the Credit Agreement, dated as of November 22, 2021, by and among Holdings and AgileThought Mexico, S.A. de C.V., as borrowers, AN Global LLC, as Intermediate Holdings, the Seller lenders party thereto from time to time, and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing DateGLAS USA LLC, as administrative agent, and GLAS Americas LLC, as collateral agent;
(k) All Liabilities any Tax obligations of Seller and their respective Affiliates related to Syngenta/ADM Actionsthe Mexican Entities or any other Group Company, in each case, other than the Acquired Entities;
(l) All those Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500specifically set forth on Schedule 2.4(l); and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateall Indemnification Claims.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any other provision of this Agreement involve a purchase and sale of assetsto the contrary, Seller shall retain, and that Buyer is shall not a legal successor assume and shall not be responsible or liable to pay, perform or discharge, any Liabilities or obligations of Seller and is assuming only other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever(collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities includeincludes, without limitation, the following:
(a) any Liabilities liabilities or obligations arising out of or relating to Seller’s ownership or operation of the Seller Business and the Purchased Assets prior to the Closing Date; including without limitation any liability or obligation for costs errors and expenses incurred (omissions whether asserted before or after the Closing Date which arises out of acts, errors or omissions first occurring prior to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing Date;
(b) any liabilities or obligations relating to or arising out of the Excluded Assets;
(c) any liabilities or obligations for (i) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any taxable period ending on or prior to the Closing Date and (ii) any other Taxes of Seller (other than Taxes for which Buyer is liable pursuant to Article VI) for any taxable period;
(d) all Liabilities relating to (A) any current or former employees of the Seller arising prior to the Closing, or (B) any Benefit Plan (including the Seller’s Pension Benefit Plan and any Liabilities associated with any Action associated therewith), except as specifically provided in Section 7.1;
(e) except as specifically provided in Section 2.3(b), any liabilities or obligations of Seller relating to its or arising out of (i) the employment, or termination of employment, of any Employee prior to the Closing, or (ii) workers’ compensation claims of any Employee which relate to events occurring prior to the Closing Date;
(f) any liabilities or obligations of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance under of this Agreement and Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(cg) any Liabilities of the Seller for Intercompany Accounts;
(d) associated with any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) Actions relating to Seller arising on or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (Indebtedness or portion thereof) ending on or before the Closing DateTransaction Expenses; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;and
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All any current Liabilities of the Seller and its Affiliates related to Business not included as liabilities in the Green Shift License Agreement to the extent such Liabilities arose from the operation final determination of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateWorking Capital.
Appears in 1 contract
Samples: Asset Purchase Agreement (Eastern Bankshares, Inc.)
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities, the Buyer shall not assume or be liable for, and that does not undertake or attempt to assume or discharge:
1.3.3.1 any liability or obligation of any Owner or Seller arising out of any Contract not included in the Contract Schedules or assumed by the Buyer is not under Sections 2.5 or 5.4 and any liability arising under Contracts before Closing except to the extent of any reserve therefor in the Closing Date Balance Sheet;
1.3.3.2 any liability or obligation of any Owner or Seller arising out of or relating to any pension, 401(k), retirement or profit sharing plan or trust, except to the extent shown as a legal successor liability on the Closing Balance Sheet;
1.3.3.3 any liability or obligation of any Owner or Seller and is assuming only the Assumed Liabilities and not arising out of or relating to any consulting agreement with an information technology consultant or employment agreement, written or oral, any severance pay or other Liabilities liability relating to any employee or information technology consultant of the Seller not specifically accepted by the Buyer;
1.3.3.4 any liability or 4 any of its Affiliates obligation of any nature Owner or Seller arising out of or relating to any litigation, proceeding or claim by any person or entity relating to the Owners, the Seller, the Business or the Assets before the Closing Date, whether such litigation, proceeding or claim is pending, threatened or asserted before, on or after the Closing Date; and
1.3.3.5 other than the Assumed Liabilities, any and all other liabilities, obligations, debts or commitments of any Owner or Seller whatsoever, whether accrued now or hereafter, whether fixed or contingent, whether known or unknown, absolute or contingentany claims asserted against any Owner or Seller, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations any employee of the Seller and/or its AffiliatesSeller, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) Business or any Liabilities of the Assets or other items owned by the Seller for costs and expenses incurred at the Closing relating to any event (whether act or to be incurredomission) for services performed by its legalbefore the Closing Date, financialincluding, accounting and investment banking advisors in connection with without limitation, the transactions contemplated by this Agreementpayment of all taxes, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreementcorporate income, all Indebtednessfranchise, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possessionsales, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing business and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateoccupation taxes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Metro Information Services Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsNeither Buyer nor any Buyer Designee shall assume or be obligated to pay, and that Buyer is not a legal successor perform or otherwise assume or discharge any liabilities or obligations of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverAffiliates, whether direct or indirect, known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of except for the Seller and/or its Affiliates, as applicable Assumed Liabilities (all of such liabilities and obligations not expressly so assumed by Buyer hereunder being herein referred to herein as the “Excluded Liabilities”). The For the avoidance of doubt, the parties agree that the Excluded Liabilities include:
, but are not limited to, any and all liabilities or obligations set forth or described in paragraphs (a) through (n) below, whether or not any Liabilities such liability or obligation has a value for accounting purpose or is carried or reflected on or specifically referred to in Seller’s books or financial statements:
a) any liability or obligation that arises from, or in connection with, the operation or the conduct of the Seller Business or the ownership of the Purchased Assets on or prior to the Closing Date (except for Seller’s accounts payable on the Closing Date, which are included in the Assumed Liabilities as set forth above);
b) any Excluded Taxes;
c) any Environmental Liabilities;
d) any liability or obligation arising out of or related to any Excluded Asset;
e) any indebtedness for borrowed money or guarantees thereof of Seller or intercompany obligations of Seller;
f) except as set forth in Section 5.4(c), any liability or obligation relating to or arising out of (i) the employment and/or any termination of such employment by Seller of any employee or former employee of Seller on or before the Closing Date, including any and all liability or obligation relating to wages, remuneration, compensation, unreimbursed expenses, benefits, severance, pensions, sabbatical, vacation, personal days, floating holidays or other paid-time-off, working time related benefits, time savings accounts, end of career indemnities, 13th month payment or similar, anniversary bonus, early retirement, reconciliation of interests, social plans, works council negotiation procedure, social security and related costs (together, the “Employment-Related Liabilities”) of the employees or former employees of Seller, in each case, that are accrued or in the course of accrual or relate to periods prior to and expenses incurred on the Closing Date or that relate on a prorate temporis basis to the period prior and including the Closing Date; (ii) any employee’s or former employee’s or his/her dependents’ rights or obligations under any fringe benefit of employment with Seller, including any Benefit Plan; (iii) any retention payments owed to be incurredBusiness Employees pursuant to arrangements entered into on or prior to the Closing Date by Seller; and/or (iv) for services performed the employment or the termination of employment (whether before, on or after Closing) or the transfer by its legaloperation of Law, financial, accounting and investment banking advisors in connection with each case as a result of the transactions transaction contemplated by this Agreement, of any person who is not a Transferred Employee but who claims or is deemed to transfer to the Buyer or any Buyer Designee by operation of Law, including, without limitation, liabilities and obligations and Losses arising from, or connected with, any broker’s fees of Seller’s brokerEmployment-Related Liabilities;
(bg) any Liabilities of the Seller relating to its performance under this Agreement liability and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising obligation which arises out of or relating relates to any breach, default or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes violation by Seller or its Affiliates of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before Leases and the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations ofContracts, Licenses and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing Governmental Permits occurring on or prior to the Closing Date or which arises out of violation of applicable Law, in each case by agreements entered into Seller or transactions entered into its Affiliates;
h) any liability or obligation in connection with, or relating to, any actions, suits, claims or proceedings against Seller which arise out of, accrue, or relate to (i) the operation or conduct of the Seller Business or (ii) the ownership of the Purchased Assets in each case on or prior to before the Closing Date;
(i) all Liabilities any benefit liability or obligation relating to or arising in connection with Section 4980B of the Code (COBRA) or otherwise by operation of applicable Law to provide continuation of health care coverage to employees or former employees of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose or their dependents arising from the operation of the Ethanol Plant a qualifying event occurring on or the Business prior to before the Closing Date;
(kj) All Liabilities of Seller and their respective Affiliates related except as set forth in Section 5.4(c), any liability or obligation arising from or relating to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500any Benefit Plan; and
(mk) All Liabilities accruing, any liability arising out of or related to that certain litigation styled “Mxxx Xxxxxxxx vs. Txxxxx Xxxxx and Cxxxxxx Rxxx Xxxx,” Docket No. 148434, 26th Judicial District Court, Bossier Parish, Louisiana (the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date“Charchio Litigation”).
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Subject to the transactions contemplated by this Agreement involve a purchase and sale indemnification provisions of assetsSection 6.2, and that Buyer is not a legal successor of Seller and is assuming only other than the Assumed Liabilities and Liabilities, Andrew shall not retaxx xx assume or be obligated to pay, perform, discharge, or otherwise be responsible for, any other Liabilities liabilities or obligations of the Seller MBSK or 4 any of its Affiliates of any nature whatsoeverMiller with respect tx XXXX, whether actual or contingent, direct or indirect, matured or unmatured, liquidated or unliquidated, or known or unknown, absolute whether arising out of occurrences prior to, at or contingentafter the date hereof (collectively, the "Excluded Liabilities"). Miller acknowledges axx xxxees that it is retaining the Excluded Liabilities, and whether presently existing or hereafter arising. All such other liabilities Miller agrees to pay, xxxxxarge and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (perform all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to promptly as and when due. Without limiting the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities generality of the Seller for costs and expenses incurred (foregoing, Andrew shall not assuxx xx be obligated to pay, perform or to be incurred) for services performed by its legaldischarge any liabilities, financial, accounting and investment banking advisors in connection obligations or commitments of MBSK or Miller with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) respect tx XXXX relating to or arising out of the ownership or operation any of the Purchased Assets following: (a) accounts or the conduct notes payable or purchase orders; (b) any liability or obligation of the Business prior to the Closing;
MBSK for fees, costs and expenses of attorneys; (fc) all Liabilities liabilities or obligations of Seller MBSK for any Taxes, workers' compensation liabilities, payroll, consulting fees or for fees or other expenses of MBSK; (d) any claims by any present or former MBSK employee to any Employee Benefit Plan or other employee benefits of its Affiliates MBSK or Miller; and (e) all lxxxxxxties and obligations, if any, under the Assumed Contracts to Original Burlington Lease (as defined in Section 2.18) or under the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes Revised Burlington Lease relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant under the Burlington Purchase Option Lease relating to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing the period ending on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateEffective Time.
Appears in 1 contract
Samples: Asset Purchase Agreement (Miller Building Systems Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsBuyer does not assume or agree to pay, perform or discharge, and that Buyer is shall not a legal successor be responsible for, any claims, liabilities or obligations of Seller and is assuming only the which are not Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverLiabilities, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise, and whether known or unknown to Seller or Buyer. Without limiting the generality of the foregoing, Buyer does not assume or agree to pay, perform or discharge, and shall not be responsible for, any claims, liabilities or obligations based on, arising out of or in connection with the following (collectively, the "Excluded Liabilities"):
(a) any advances, loans, notes, indebtedness or other obligations for borrowed monies (including interest accrued on such advances, loans, notes, indebtedness or other obligations) payable by Seller other than the Assumed Liabilities, including any notes payable to officers, directors, or Affiliates of Seller;
(b) except as provided in Section 3.3(c) any accounts payable or liabilities listed on the Interim Balance Sheet of Seller and any obligations, liabilities or accounts payable arising in the Ordinary Course of Business since such date;
(c) the mortgage debt or other borrowings relating to the Real Property described in Part 2.1(b)(ii) of the Disclosure Letter;
(d) any claims against Seller by any of their directors, officers, employees, or shareholders, including claims by any of them relating to or arising out of the ownership their employment by Seller;
(e) any dividend or operation of the Purchased Assets other distribution declared or the conduct of the Business prior to the Closingotherwise payable by Seller;
(f) all Liabilities defective performance of or defaults by Seller prior to the Closing under the Scheduled Contracts, Assigned Real Estate Leases or Assigned Personal Property Leases, or any express or implied warranty with respect to such performance;
(g) any note, account payable or other obligation of Seller to any Affiliate of Seller;
(h) any claims, liabilities or obligations relating to the Excluded Assets;
(i) any claim, liability or obligation involving criminal activities, fraud or willful misconduct on the part of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid respective employees, agents, officers or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit Cdirectors;
(j) All Liabilities of the claims, liabilities, or obligations associated with any Proceeding against Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business pending prior to the Closing Date;
(k) All Liabilities any claims, liabilities, or obligations of Seller and their respective Affiliates related that arise out of the operation of the business of Seller prior to Syngenta/ADM Actionsthe Closing Date that are not Assumed Liabilities;
(l) All Liabilities associated with any Taxes attributable or relating to the matters described in that certain Consent Agreement and Final OrderAssets or the business of Seller for any periods ending on or before the Closing Date, Green Plains Inc.or which may be applicable to Seller because of the Reorganization, respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; andSeller's sale of the business or any of the Assets to Buyer;
(m) All Liabilities accruingany claims, liabilities or obligations of Seller under any Contracts, other than the Assigned Real Estate Leases, Assigned Personal Property Leases, and Scheduled Contracts; or
(n) any claims, liabilities or obligations arising out of or related under ERISA and relating to the ownership, possession, use, operation or condition business of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business Seller before the Closing and any liabilities and obligationsDate, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateexcept as described in Section 11.3.
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Excluded Liabilities. The parties acknowledge that (a) Neither the transactions contemplated by this Agreement involve a purchase and sale Buyers nor any Affiliate of assetseach Buyer shall assume, and that Buyer is not a legal successor take subject to or be liable for any liabilities or obligations of Seller and is assuming only any kind or nature other than the Assumed Liabilities and not Liabilities, whether absolute, contingent, accrued, known or unknown, of the Business, any other Liabilities of the Seller or 4 any Affiliate of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The .
(b) Without limiting the generality of Section 2.6(a) and excepting the Assumed Liabilities listed in Section 2.5, the Excluded Liabilities includeshall include any liabilities or obligations of the Seller or the Shareholder or any Affiliate of Seller or the Shareholder incurred, arising from or out of, in connection with or relating to:
(ai) any Liabilities claims made by or against the Seller or the Shareholder or any Affiliate of Seller or the Shareholder, whether before or after the Closing Date, that arise out of events prior to the Closing Date, including any and all liabilities or obligations relating to investigations by any Governmental Authority;
(ii) any Taxes, including any Taxes arising by reason of the transactions contemplated herein;
(iii) any liabilities or obligations under a Contract;
(iv) Environmental Laws or environmental liability related to Real Property;
(v) any Plans or Other Benefit Obligations;
(vi) any employment, severance, retention or termination agreement with any employee;
(vii) any employee grievance;
(viii) any obligation to indemnify, reimburse or advance amounts to any officer, director, employee or agent;
(ix) any obligation to distribute to any shareholder or otherwise to apply all or any part of the consideration received hereunder;
(x) any Proceeding pending as of the Effective Time or any Proceeding commenced after the Effective Time that arises out of or relates to any occurrence or event happening prior to the Effective Time;
(xi) any compliance or noncompliance with any Legal Requirement of any Governmental Authority;
(xii) any credit facility or any security interest related thereto, including but not limited to the credit facility provided to the Seller for costs by Fifth Third Bank and the related security interest pledged by the Seller to Fifth Third Bank;
(xiii) any fees and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerhereby;
(bxiv) any Liabilities of the Seller relating obligation to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyany shareholder or former shareholder;
(cxv) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) obligation relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(mxvi) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property any obligation of any Third Party attributable to Seller under this Agreement or arising out of any other document executed in connection with the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datetransactions contemplated hereby.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding anything else contained herein to the transactions contemplated by this Agreement involve a purchase contrary, all liabilities and sale obligations of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, Sellers (whether known or unknown, absolute liquidated or contingentunliquidated, and whether presently existing contingent or hereafter arising. All such fixed) other liabilities and obligations shall be retained by and remain liabilities and obligations of than the Seller and/or its Affiliates, as applicable Assumed Liabilities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”), shall remain the liabilities and obligations of Sellers, and shall not be assumed by Purchaser pursuant hereto (regardless of whether any such liabilities or obligations are disclosed in this Agreement). The Each Seller hereby agrees that it shall fully and timely pay, perform and discharge all of the Excluded Liabilities includein accordance with their respective terms. Without limiting the generality of the foregoing, Excluded Liabilities of Sellers include the following:
(a) any Liabilities of the Seller for costs and expenses incurred (liability or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities obligation of any kindSeller arising under any Assumed Contract, character or description (whether known or unknownLease, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) License or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date agreement as a result of any Person imposed on Buyer as a transferee act or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or omission occurring prior to the Closing Date;
(ib) all Liabilities of Seller and its Affiliates with respect any liability or obligation related to Employees as provided in Exhibit Cthe Excluded Assets;
(jc) All Liabilities any liability or obligation for any Taxes owed by any Seller or arising in connection with the consummation of this Agreement and the Seller transactions contemplated hereby, unless otherwise provided in this Agreement;
(d) any liability or obligation of Sellers for costs and its Affiliates related to expenses incurred in connection with this Agreement and the Green Shift License Agreement to the extent such Liabilities arose from the operation transactions contemplated hereby;
(e) any liability or obligation of the Ethanol Plant Sellers under or the Business in connection with any action, suit, proceeding or investigation arising out of acts, omissions or events occurring prior to the Closing Date, including, but not limited to, claims or actions pursuant to any statutes and regulations with respect to short-term loans, usury statutes, the Equal Credit Opportunity Act and Regulation B promulgated thereunder, the federal Truth-in-Lending Act and Regulation Z promulgated thereunder, the federal Fair Credit Reporting Act, the Federal Trade Commission’s Rule on Credit Practices, and any other federal, foreign, state or local statute, law, ruling, or ordinance; provided, however, that all such actions, proceedings, suits, and investigations arising out of any acts, omissions or events occurring on or after the Closing Date relating to the Acquired Assets or the Business or any activity, form or aspect thereof shall be the sole obligations of the Purchaser, except as set forth in Section 3.11(a)(ii);
(kf) All Liabilities any liability or obligation of Seller and their respective Affiliates related Sellers relating to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Orderany breach of contract, Green Plains Inc.breach of warranty, respondenttort, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, infringement or violation of law arising out of acts, omissions or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties events occurring prior to the Closing Date, except as set forth in Schedule 1.4(f);
(g) any liability or obligation of Sellers to any employee as a result of this transaction and any liability or obligation under or in connection with any employee benefit plan, policy or practice, or any employment agreement, collective bargaining agreement or severance agreement except as set forth in Schedule 1.4(g);
(h) any liability or obligation of Sellers to indemnify any person by reason of the fact that such person was an employee, officer, director, manager or agent of Sellers (or such person was serving in any such capacity of any other entity at the request of any Seller) prior to the Closing Date; and
(i) any liability or obligation relating to any loan, line of credit, guaranty or other indebtedness of Sellers not assumed by Purchaser pursuant to Section 1.3.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer Purchaser is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) subject to Section 1.03(iv), any Liabilities liabilities in respect of the any Taxes, (b) any liability of either Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors or broker's fees incurred in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees negotiation of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations ofhereby, and are payable by, the (c) any liability owing by either Seller to any shareholder or former shareholder of such Seller or any affiliate of such Seller, whether such Taxes arise (d) any obligations in respect of either Seller's bank accounts, (e) the obligations under any employment, change of control, stay or retention agreement or arrangement entered into by Law or either Seller with any Business Employee or, except as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending reflected on or before the Closing Date Statement, any deferred compensation arrangement entered into by either Seller with any Business Employee, (f) liabilities resulting from any Plan or Employee Benefit Program, or (g) any claims, liabilities or obligations relating to the Excluded Assets. Other than as specifically set forth in Section 1.03 or elsewhere in this Agreement, Purchaser assumes no obligation whatsoever of either Seller, including without limitation Sellers' non-trade obligations, indebtedness for borrowed money or notes payable, claims under lawsuits, taxes owed any governmental entity, tort liabilities, liabilities for workers compensation or employee health costs (whether in respect of any Person imposed on Buyer as a transferee self-insured plan or successorotherwise), by contract premiums under health or other insurance policies, or obligations to employees for wages or benefits (except for obligations pursuant to COBRA), payments required to be made in respect of any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, statestate and local payroll taxes including FICA, local or foreign Law) with FUTA, SUTA and SUI and income tax withholdings and sales and use taxes, all in respect to Liabilities or relationships existing on or prior to the Closing Date or of any business activities conducted by agreements entered into or transactions entered into on or Sellers prior to the Closing Date;
(i) all . Liabilities of Seller and its Affiliates with respect Sellers other than Assumed Liabilities are herein referred to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date"Excluded Liabilities."
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor assuming and shall not pay, perform, or discharge any debt, liability, obligation, understanding, arrangement or contract, whether written or oral or existing, contingent or inchoate, except the Assumed Liabilities. Without limiting the scope of the foregoing, it is expressly agreed that Buyer shall not assume:
2.2.1 Any obligations, liabilities or expenses of Seller and is assuming only the Assumed Liabilities and not for any other Liabilities of the Seller brokerage or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred finder's commission relating to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees the purchase of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations ofor thereby.
2.2.2 Any federal, and are payable by, the Seller, whether such Taxes arise by Law state or as agreed to by the parties hereto under Section 8.4(a) local income or other provisions of this Agreement; or tax (ivi) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) payable with respect to Liabilities the Business, operations, assets or relationships existing on properties of Seller for any period prior to the Closing Date, or (ii) incident to or arising as a consequence of the negotiation or consummation by Seller of this Agreement and the transactions contemplated hereby, including any sales or other taxes imposed upon the transfer and delivery of the Assets to Buyer.
2.2.3 Any liability or obligation under or in connection with assets not included In the Assets.
2.2.4 Except as set forth in Section 2.1 above, any obligations or liabilities arising out of actions taken, work done or contracts entered into by Seller before or after the Closing Date.
2.2.5 Any liability or obligation arising out of any breach by Seller prior to the Closing Date (including the failure of Seller to perform, or negligent or improper performance in accordance with its terms) of any agreement, contract, commitment, lease, permit or other undertaking.
2.2.6 Any liability or claim which arises out of or is based upon any service performed or product sold by agreements entered into or transactions entered into on or behalf of Seller prior to the Closing Effective Date;, including without limitation, any claim relating to any product delivered in connection with the performance of such service and any claim seeking recovery for consequential damage, lost revenue, income, or punitive or exemplary damages.
(i) all Liabilities 2.2.7 Any obligations or liabilities of Seller and its Affiliates arising under ERISA with respect to Employees as provided in Exhibit C;any employee benefit plan of Seller, or any other obligations or liabilities arising under such plans or arrangements of Seller.
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities 2.2.8 Any accounts payable of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateother than those expressly assumed by Buyer under Section 2.1 above.
Appears in 1 contract
Samples: Asset Purchase Agreement (Boots & Coots International Well Control Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only Except for the Assumed Liabilities and Liabilities, Purchaser does not assume any other Liabilities of the Seller claim, Indebtedness, liability or 4 any of its Affiliates of any nature whatsoeverobligation whatsoever whether now existing or hereafter arising, whether secured or unsecured, known or unknown, absolute absolute, accrued or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable contingent (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include, and, for the avoidance of doubt, does not hereby assume any part of any of the following liabilities or obligations of Asset Seller or any other Person:
(a) Liabilities for Taxes of Asset Seller (including, for the avoidance of doubt, any Liabilities Taxes relating to the Acquired Assets, the Assumed Liabilities, or otherwise arising as a result of this Agreement and/or the consummation of the Seller for costs and expenses incurred transactions contemplated hereby other than those Taxes that are apportioned to Purchaser in accordance with Section 8.3);
(b) Any liabilities or to be incurredobligations arising from any Excluded Contract;
(c) for Any liability on account of any services performed by or on behalf of Asset Seller prior to the Closing, or, with respect to any Excluded Contract, prior to, at or after the Closing;
(d) Any liabilities for any breach or default of any Acquired Contract, or for any claim for indemnification contained in any Acquired Contract, to the extent that such breach, default or claim arose out of or by virtue of the performance, or failure to perform, by Asset Seller or its legalAffiliate thereunder prior to the Closing Date (including warranty obligations);
(e) Any Indebtedness of Asset Seller (including any current portions thereof);
(f) Any Employee Liabilities (i) relating to periods prior to the Closing Date, financialincluding the Accrued Vacation Amount, accounting and investment banking advisors in connection with (ii) payable by Asset Seller to its employees contingent upon (A) the Closing of the transactions contemplated by under this Agreement, or (B) the completion of any projects retained by Asset Seller following the Closing, including projects with respect to Excluded Contracts. For the avoidance of doubt, such Employee Liabilities that are Excluded Liabilities shall include any amounts payable to any employees pursuant to retention bonus agreements entered into by the Asset Seller and any employees of the Asset Seller, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating payments payable to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related Xxxxxx X. Xxxxxxxx pursuant to railcars;
(e) except as expressly set forth in this that certain Bonus Agreement, all Indebtednessdated February 24, Contracts 2015, by and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of between Asset Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closingand Xxxxxx X. Xxxxxxxx;
(g) all Liabilities arising out Any liability of or relating Asset Seller to or associated with the Excluded Assetsany of its Related Parties;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise whatever nature arising out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to in connection with any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract Hazardous Material or pursuant to any Environmental Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date extent that such liabilities relate to events arising or by agreements entered into or transactions entered into on or occurring prior to the Closing Date;
(i) all Liabilities Any liabilities or obligations resulting from any violation prior to the Closing Date by Asset Seller, or any Affiliate, employee, director or agent of Asset Seller, or any predecessor for which Asset Seller may be liable, of any applicable Law, or any Permit of Asset Seller, including those applicable to discrimination in employment, employment practices, wage and its Affiliates with respect to Employees as provided in Exhibit C;hour, retirement, labor relations, occupational safety, health, trade practices, environmental matters, competition, pricing, product warranties, product liability and product advertising; and
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant Any liabilities or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described obligations in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property respect of any Third Party attributable to or arising out of the ownership or operation of the Purchased Excluded Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by contrary contained in this Agreement involve a purchase and sale of assetsAgreement, and that Buyer is not a legal successor of Seller and is assuming only other than the Assumed Liabilities, Purchaser shall not be obligated to assume or to perform or discharge any Liability of Sellers (such Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as Purchaser, the “Excluded Liabilities”). The , which Excluded Liabilities includefor the avoidance of doubt shall include the following:
(a) any Bankruptcy Claims against or Liabilities of Sellers arising prior to the Seller for costs and expenses incurred (or Closing except to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerextent specifically included as Assumed Liabilities;
(b) any Liabilities Bankruptcy Claims against Sellers arising under section 503(b)(9) of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyBankruptcy Code;
(c) any Bankruptcy Claims against or Liabilities of Sellers arising prior to the Seller for Intercompany AccountsClosing under the Perishable Agricultural Commodities Act, 7 U.S.C. §499a et seq., the Packers and Stockyards Act, 7 U.S.C. § 181 et seq., or their state law correlates;
(d) any Liabilities of the Seller for asset retirement obligations related to railcarsExcluded Taxes;
(e) except as expressly set forth in this Agreementall environmental Liabilities arising prior to the Closing Date under federal, all Indebtedness, Contracts and Liabilities of any kind, character state or description (whether known or unknown, accrued, absolute, contingent or otherwise) local law relating to or arising out of or in connection with the ownership Purchased Assets or the Acquired Theaters;
(f) all Liabilities of Sellers arising from or relating to any litigation against any Seller or any of their respective Affiliates, or arising from or related to the Purchased Assets or the Assumed Liabilities, pending or threatened or with respect to facts or circumstances existing as of or prior to the Closing;
(g) all Liabilities of Sellers arising from or related to the operation or condition of the Purchased Assets or the conduct Assumed Liabilities prior to the Closing or arising from or relating to the operation of the Business prior to the Closing;
(fh) all Liabilities arising from or relating to any asset of any Seller or any of their respective Affiliates, whether arising prior to or after the Closing (other than post-Closing Liabilities related to Purchased Assets);
(i) all Liabilities which Purchaser could become liable for as a result of or in connection with any “de facto merger” or “successor-in-interest” theories of liability, but only to the extent incurred by Sellers on or prior to the Closing;
(j) any liabilities or obligations relating to or arising out of the Excluded Assets;
(k) all Bankruptcy Claims and Liabilities of Sellers in respect of Indebtedness, including the DIP Financing and the Credit Facility (except to the extent of any Cure Costs under any Purchased Contracts);
(l) all Liabilities of Seller Sellers relating to legal services, accounting services, financial advisory services, investment banking services or any other institutional professional services (“Professional Services”) performed in connection with this Agreement and any of its Affiliates under the Assumed Contracts to transactions contemplated hereby, and any claims for such Professional Services, whether arising before or after the extent required to be paid or performed prior to ClosingPetition Date;
(gm) all Liabilities arising out of or relating to the Company Benefit Plans or associated with the Excluded Assetsany other Seller benefit plan, and all Liabilities relating to accrued payroll, vacation, sick leave, and other compensated time off, in each case, including all administrative functions;
(hn) all Liabilities involving current or former employees, directors and individual independent contractors of the Business, including with respect to any wages, bonuses, commissions, independent contractor or agent payments, payroll, workers’ compensation, unemployment benefits, severance, change of control bonuses, success bonuses, stay or retention obligations (i) Taxes of Seller (including under the Sellers’ key employee incentive and retention plans), or any stockholder memberother similar payments (including administrative functions), or Affiliate of Seller); (ii) Taxes relating to the Businessin each case, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement except to the extent such Liabilities arose from included in the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Assumed Liabilities; and
(mo) All all other Liabilities accruing, arising out of or related to Sellers that are not expressly included in the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateAssumed Liabilities.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by contrary contained in this Agreement involve a purchase and sale of assetsAgreement, Purchaser will not assume or be liable for, and that Buyer is not a legal successor Seller will retain and remain responsible for, all of Seller Seller’s debts, liabilities and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates obligations, of any nature whatsoever, other than the Assumed Liabilities, whether accrued, absolute or contingent, whether known or unknown, absolute whether due or contingentto become due, whether related to the Purchased Assets, the Business, the Excluded Assets or otherwise, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations regardless of the Seller and/or its Affiliates, as applicable when asserted (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Without limiting the scope of Excluded Liabilities include:
under this Section 2.4, Excluded Liabilities specifically include (a) any Liabilities liabilities with respect to Taxes for which Seller is liable pursuant to Section 10.3 of the Seller for costs this Agreement, including without limitation any Taxes required to have been withheld and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors paid in connection with amounts paid or owing to any employee, independent contractor, creditor or other Person, and any Taxes required to have been withheld under Section 1445 of the transactions contemplated by this AgreementCode; (b) all liabilities and obligations of Seller arising out of or relating to any actions or omissions of employees, consultants, independent contractors and experts of any kind occurring before the Closing Date, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its acts or omissions in connection with the performance under this Agreement of services for clients of Seller and the Transaction Documents and the transactions contemplated hereby and thereby;
unlawful discrimination or harassment, (c) all liabilities and obligations of Seller arising out of or in connection with E-xxxxx LLC, Secura Xxxxxxx Company or any Liabilities other subsidiary of the Seller for Intercompany Accounts;
Seller; (d) any Liabilities of costs and expenses incurred by the Seller for asset retirement obligations related Parties incident to railcars;
the negotiation and preparation of this Agreement and their performance and compliance with the agreements and conditions contained in this Agreement; and (e) except as expressly set forth any liabilities in this Agreement, all Indebtedness, Contracts and Liabilities of connection with any kind, character claims for conduct or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or agreements occurring prior to the Closing Date that are asserted by Xxxxxx X. Xxxxxxxx or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateXxxx Xxxxxx.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lecg Corp)
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase Assumed Liabilities, Buyer shall not assume, nor shall it be liable for and sale of assetsunder no circumstance shall the Buyer be obligated to pay or assume, and that Buyer is not a legal successor none of the Assets shall be or become liable for or subject to any liability or obligation of Seller and is assuming only the Assumed Liabilities and not Group or its affiliates, including any other Liabilities obligations or liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities includeGroup:
(a) any Liabilities of the Seller for costs and expenses incurred (medical malpractice or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokergeneral liability claims;
(b) any Liabilities arising out of or relating to the ownership or use of the Seller relating Assets prior to its performance under this Agreement Effective Time, whether (in any case) fixed or contingent, recorded or unrecorded, known or unknown, currently existing or hereafter arising, and whether or not set forth or described in the Transaction Documents and the transactions contemplated hereby and therebySchedules;
(c) any Liabilities debt of the or claim against Seller for Intercompany AccountsGroup or any one or more of its affiliates, or any obligation of Seller Group or any one or more of its affiliates to repay borrowed money;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities claim against or obligation of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) nature whatsoever relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(he) all Liabilities any liability under any pension or other benefit plan of Seller Group, or any administrative costs associated with such benefit plans arising prior to the Effective Time;
(f) any liability relating to Seller Group Cost Reports (as hereinafter defined), including terminating cost reports, or other Medicare, Medicaid or TRICARE claims with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating periods ending prior to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the SellerEffective Time, whether such Taxes arise by Law arising in connection with a “self report” or as agreed otherwise;
(g) any liability for violating any Legal Requirements to by the parties hereto extent arising from acts or omissions prior to the Effective Time, including those pertaining to Medicare and Medicaid fraud or abuse and federal and state physician anti-self-referral laws;
(h) any liability under Section 8.4(a) Seller Group’s provider agreements with Government Programs or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successorThird Party Payor Programs, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior any liability for amounts paid to the Closing Date or by agreements entered into or transactions entered into on or prior Seller Group in excess of the maximum “caps” allowed pursuant to the Closing Datelimitation on payments for hospice services described in 42 U.S.C. §1395f and the applicable Medicare regulations (“Medicare Cap Liability”) and the repayment of any alleged overpayments;
(i) all Liabilities any liability and obligation for Taxes whether or not accrued, assessed or currently due and payable, (i) of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related Group, whether or not it relates to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant Facilities or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.or
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase and sale of assetsto the contrary, and that Buyer is not a legal successor of Seller and Purchaser is assuming only the Assumed Liabilities and is not assuming, and shall not be deemed to have assumed, any other Liabilities liabilities of Sellers of whatever nature (whether arising prior to, at the Seller time of, or 4 any of its Affiliates of any nature whatsoeversubsequent to Closing), whether absolute, accrued, contingent or otherwise, whether due or to become due, and whether known or unknown, absolute unknown or contingent, and whether presently currently existing or hereafter arising. All such other liabilities and obligations arising or matured or unmatured, direct or indirect, and, except for the Assumed Liabilities, Sellers shall be retained by solely and remain liabilities exclusively liable for any and obligations all such liabilities, including those relating to, arising out of or in connection with the operation of the Seller and/or its AffiliatesBusiness or use and ownership of the Purchased Assets at any time prior to the Closing Date, as applicable including those liabilities of Sellers set forth below (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the collectively, “Excluded Liabilities”). The Excluded Liabilities include:):
(a) liabilities under any Liabilities contract, including any Assigned Contract or Additional Assigned Contract other than the Cure Amounts solely to the extent set forth in Schedule 2.1(c) hereof, to the extent such liabilities arise as a result of a breach or violation of, or other default under, such contract occurring prior to, as of, or as a result of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing;
(b) all liabilities relating to or otherwise arising, whether before, on or after the Closing, out of, or in connection with, any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyExcluded Assets;
(c) any Liabilities of all accounts payable (except to the Seller for Intercompany Accountsextent an Assumed Liability pursuant to Section 2.3 hereof);
(d) any Liabilities of the Seller for asset retirement obligations related and all liabilities with respect to railcarsborrowed money;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts guarantees of third party obligations and Liabilities reimbursement obligations to guarantors of any kind, character Sellers’ obligations or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out under letters of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closingcredit;
(f) any and all Liabilities liabilities in respect of Seller contracts, leases or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closingother agreements that are not Assigned Contracts;
(g) except as set forth expressly to the contrary in Section 2.3(c) hereof, all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities liabilities with respect to (i) Taxes compensation, severance or benefits of any nature owed to any current or former employee, officer, director, member, partner or independent contractor of a Seller or any affiliate of a Seller (or any stockholder memberbeneficiary or dependent of any such individual), whether employed by Purchaser or any of its affiliates after the Closing, or Affiliate any other employee, including Transferred Employee Claim(s), that arises out of Seller); (ii) Taxes relating or relates to the Business, the Assets events or the Assumed Liabilities for any Tax period (or portion thereof) ending conditions occurring on or before the Closing Date; ;
(iiih) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law drafts or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before checks outstanding at the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or (except to the extent an Assumed Liability pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date2.3 hereof);
(i) all Liabilities liabilities for fees, costs and expenses that have been incurred or that are incurred or owed by Sellers in connection with this Agreement or the administration of Seller the Bankruptcy Cases (including all fees and its Affiliates expenses of professionals engaged by Sellers and the Committee or any other statutory committee appointed in the Bankruptcy Cases) and administrative expenses and priority claims accrued through the Closing Date and post-closing administrative wind-down expenses of the bankrupt estates pursuant to the Bankruptcy Code and all costs and expenses incurred in connection therewith, including (i) the negotiation, execution and consummation of the Transactions contemplated under this Agreement and each of the Ancillary Documents, (ii) the preparation and submission of any filing or notice required to be made or given in connection with respect any of the Transactions contemplated by this Agreement, and the obtaining of any consent required to Employees be obtained in connection with any of such Transactions; and (iii) the consummation of the Transactions contemplated by this Agreement, including any retention bonuses, “success” fees, change of control payments and any other payment obligations of Sellers payable as provided in Exhibit Ca result of the consummation of the Transactions contemplated by this Agreement and the Ancillary Documents;
(j) All Liabilities of the Seller and its Affiliates all liabilities related to the Green Shift License Agreement WARN Act, to the extent such Liabilities arose from the operation applicable, with respect to separation of the Ethanol Plant or the Business employment of any employees of Sellers prior to or on the Closing Date;
(k) All Liabilities all liabilities of any Seller and their respective Affiliates related to Syngenta/ADM Actionsits directors with respect to director and/or other board fees and/or reimbursable expenses pursuant to such Seller’s Organizational Documents or applicable Law;
(l) All Liabilities associated with the matters described all liabilities of any Seller to its equity holders respecting dividends, distributions in that certain Consent Agreement and Final Orderliquidation, Green Plains Inc.redemptions of interests, respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; andoption payments or otherwise;
(m) All Liabilities accruing, all liabilities arising out of or relating to any business or property formerly owned or operated by Sellers, any affiliate of Seller or predecessor thereof, but not presently owned and operated by Sellers;
(n) all liabilities relating to claims, actions, suits, arbitrations, litigation matters, proceedings or investigations (in each case whether involving private Persons, Governmental Bodies or otherwise) involving, against, or affecting any Purchased Asset, the Business, Sellers, or any assets or properties of Sellers, whether commenced, filed, initiated, or threatened before or after the Closing, provided that such claim, action, suit, arbitration, litigation matter, proceeding or investigation relates to facts, events, or circumstances arising or occurring before the Closing;
(o) except for Cure Amounts and any other liability under an Assigned Contract or other Assumed Liability, all obligations of Sellers arising and to be performed prior to the Closing Date arising from or related to the ownershipBusiness or the Purchased Assets;
(p) all Environmental Liabilities;
(q) all liabilities and obligations of a Seller under an Assigned Contract as of the Closing Date, possessionincluding any and all cure amounts required to be paid pursuant to Section 365 of the Bankruptcy Code in connection with the assumption and assignment of the Assigned Contract (“Cure Amounts”); provided, usehowever, operation that Purchaser shall be obligated to pay, and shall pay at the Closing, the Cure Amounts set forth in Schedule 2.1(c) hereof;
(r) all liabilities of Sellers or condition their predecessors arising out of any contract, agreement, Permit, or lease that is not transferred to Purchaser as part of the Purchased AssetsAssets or, is not transferred to Purchaser because of any failure to obtain any consent required for such transfer;
(s) except only to the Ethanol Plant extent listed as a Permitted Encumbrance as set forth on Schedule 1.1(ttt), any and all liabilities of Sellers for any Taxes, any Taxes attributable to the Purchased Assets or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and for any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties period prior to the Closing Date; and
(t) any claims or liabilities not expressly acknowledged and accepted as an Assumed Liability as set forth herein.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase Assumed Liabilities, Buyers shall not assume and sale of assetsunder no circumstances shall Buyers be obligated to pay or assume, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities none of the Seller assets of Buyers shall be or 4 become liable for or subject to any liability, indebtedness, commitment, or obligation of its Affiliates of any nature whatsoeverSellers or their Affiliates, or with respect to the Facilities, whether known or unknown, absolute fixed or contingent, and whether presently recorded or unrecorded, currently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliatesarising or otherwise (collectively, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The , including, without limitation, the following Excluded Liabilities includeLiabilities:
(a) any Liabilities debt, obligation, expense or liability that is not an Assumed Liability (including but not limited to accounts payable, accrued salaries and accrued liabilities);
(b) any liability or obligation arising out of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this AgreementAssets and/or ownership and operation of the Facilities prior to the Effective Time, including without limitation claims or potential claims for medical malpractice or general liability relating to acts, events or omissions asserted to have existed or occurred prior to the Effective Time;
(c) those claims and obligations (if any) specified in Schedule 1.4 hereto;
(d) all litigation, claims, actions, proceedings, liabilities and obligations relating to, in connection with or arising out of matters described or referred to (or required to be described or referred to) on Schedule 3.13;
(e) any liabilities or obligations associated with or arising out of any of the Excluded Assets;
(f) liabilities and obligations of Sellers or their Affiliates (with respect to the Facilities or Assets) in respect of periods prior to the Effective Time arising under the terms of the Medicare, Medicaid, CHAMPUS/TRICARE, BlueCross, or other third party payor programs, including, without limitation, in respect of third party payors pursuant to retrospective settlements (including, without limitation, pursuant to Medicare, Medicaid and CHAMPUS/TRICARE cost reports filed or to be filed by Sellers for periods prior to the Effective Time, RAC appeals, ACOs, CINs, CJR, and all liabilities and obligations for periods prior to the Effective Time related to all Medicaid payments and programs, including, but not limited to (i) settlements or adjustments to prior Medicaid payments resulting from the State’s audit or other recalculation of Medicaid payments for services rendered prior to the Effective Time, (ii) DSH, (iii) LIP, and (iv) DPP), and all appeals and appeal rights of Sellers relating to such settlements, any broker’s fees audit under the Medicare RAC program or any noncompliance with applicable law or contractual obligations related to the billing or collection of Seller’s broker;
(b) services, any Liabilities ACOs, CINs, CJR, and any liability arising pursuant to the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or any other third party payor programs as a result of the Seller relating to its performance under this Agreement and the Transaction Documents and consummation of any of the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in under this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out federal, state or local Tax liabilities or obligations of Sellers or relating to or associated with the Excluded Assets;
(h) all Liabilities with their Affiliates in respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating periods prior to the Business, the Assets Effective Time or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of resulting from the consummation of the transactions contemplated hereby which constitute herein including, without limitation, (1) any income tax, any franchise tax, any tax recapture, any sales and/or use tax, and any FICA, FUTA, workers’ compensation, 6 and (2) any and all other taxes or amounts due and payable as a result of the exercise by the employees at the Facilities that are hired by Xxxxxx following Closing of such employees’ right to vacation, sick leave, and holiday benefits accrued while in the employ of Sellers (provided, however, that this clause (g)(2) shall not apply to any and all such taxes payable with respect to any employee benefits constituting Assumed Liabilities);
(h) liability for any and all claims by or on behalf of employees, independent contractors, directors, officers, managers or other persons of Sellers, their Affiliates (with respect to the Facilities or Assets) or the Facilities relating to periods prior to the Effective Time including, without limitation, liability for any compensation-related payments, pension, profit sharing, deferred compensation, equity or equity-related compensation, incentive compensation, fringe benefit, tuition reimbursement, severance, termination pay, change in control or retention payments, bonuses or any other employee benefit plan of whatever kind or nature or any employee health and welfare benefit plans, liability for any unemployment compensation claim, or workers’ compensation claim, and any liabilities or obligations to former employees of Sellers, their Affiliates (with respect to the Facilities) or the Facilities under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), (provided, however, that this clause (h) shall not apply to any and all employee accrued vacation and holiday benefits constituting Assumed Liabilities under Section 1.3(c) hereof);
(i) any obligation or liability accruing, arising out of, or relating to any federal, state or local investigations of, or claims or actions against, Sellers or any of their Affiliates (with respect to the Facilities or Assets) or any of their employees, medical staff, agents, vendors or representatives with respect to acts, events, circumstances or omissions prior to the Effective Time;
(j) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of Sellers, their Affiliates or, to the extent related to their services to Sellers or their Affiliates or to the Facilities, their directors, officers, employees and are payable byagents, claimed to violate or not comply with any constitutional provision, statute, ordinance or other law, rule, regulation or order, consent decree, continuing disclosure agreement, license, permit or other agreement of or with any Government Entity;
(k) liabilities or obligations arising out of any breach, non-compliance or default by Sellers or their Affiliates under any Contract prior to the Effective Time;
(l) liabilities or obligations arising (whether as a result of any breach, non-compliance or default by Sellers or their Affiliates, or otherwise) at any time under any contract or commitment that is not expressly assumed by Buyers in this Agreement;
(m) any debt, obligation, expense, or liability of Sellers arising out of or incurred as a result of any transaction, act or omission of Sellers or their Affiliates (with respect to the Facilities) occurring after the Effective Time;
(n) any liability or obligation of Sellers and their Affiliates (with respect to the Facilities or Assets) relating to any violation or non-compliance with federal, state, foreign or other laws, rules, regulations, orders or decrees regulating fraud, including but not limited to those described on any disclosure schedule (including, for example, Schedule 3.8, Schedule 3.10, Schedule 3.14, Schedule 3.16) and the federal Anti-Kickback Law (42 U.S.C. § 1320(a)-7(b) et seq.) (the “Anti-Kickback Law”), the SellerEthics in Patient Referrals Act (42 U.S.C. § 1395nn et seq.) (the “Xxxxx Law”), whether such Taxes arise by Law or as agreed to by and the parties hereto under Section 8.4(aFalse Claims Act (31 U.S.C. § 3729 et seq.) or other provisions of this Agreement(the “False Claims Act”); or and
(ivo) all Taxes attributable liabilities and obligations relating to any Tax period (oral agreements, oral contracts or portion thereof) ending on or before the Closing Date of oral understandings with any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (referral sources including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federalphysicians, stateunless reduced to writing, local or foreign Lawidentified on Schedule 1.1(g) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller hereto, and its Affiliates with respect to Employees expressly assumed as provided in Exhibit C;
(j) All Liabilities part of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateContracts.
Appears in 1 contract
Samples: Asset Purchase Agreement (Community Health Systems Inc)
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by this Agreement involve a purchase contrary contained herein, Buyer shall not assume and sale shall not be responsible to pay, perform or discharge any Liabilities of assets, and that Buyer is not a legal successor Sellers of Seller and is assuming only any kind or nature whatsoever other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The ) and Sellers shall pay, perform and discharge as and when due, any and all Excluded Liabilities includeto the extent related to the Business. Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
(a) any Liabilities relating to or arising out of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerExcluded Assets;
(b) any Liabilities of the Seller for (i) Taxes relating to its the Business, the Purchased Assets or the Assumed Liabilities, in each case, for any taxable period (or portion thereof) ending on or prior to the day before the Closing Date; (ii) Taxes of Sellers (except Buyer’s portion of any Transfer Taxes and any Taxes that arise as a result of Buyer’s breach of covenants in Section 6.11(d)); (iii) Taxes of any Person imposed on the Business or the Purchased Assets as a transferee, successor by contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing, (iv) Taxes that have been deferred from a Pre-Closing Tax Period (or the pre-Closing portion of a Straddle Period) under the CARES Act or similar state, local or Canadian Law;
(c) any Liabilities of Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance under of this Agreement and Agreement, the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities , including fees and expenses of the Seller for Intercompany Accountscounsel, accountants, consultants, advisers and others;
(d) any Liabilities of Sellers arising from or relating to the Seller for asset retirement obligations related employment, engagement or termination of employment or engagement of any present or former employees, officers, directors, retirees, independent contractors or consultants of the Business, including the Liabilities expressly allocated to railcarsSellers or their Affiliates in Section 6.3(b);
(e) except as expressly set forth any Liabilities in this Agreement, all Indebtedness, Contracts and Liabilities respect of any kindpending or threatened Action, character whether occurring before or description (whether known or unknownafter the Closing, accruedto the extent arising out of, absolute, contingent or otherwise) relating to or arising out otherwise in respect of the ownership or operation of the Business or the Purchased Assets prior to the Closing;
(f) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the conduct Business prior to the Closing, or by reason of any actual or alleged improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products manufactured or sold or any service performed by the Business prior to the Closing;
(fg) any recall, design defect, breach of warranty or similar claims relating to any products manufactured or sold or any service performed by Business to the extent arising out of or relating to facts, circumstances or conditions existing prior to the Closing;
(h) any Liabilities of Sellers under Environmental Laws (including any Environmental Claims relating thereto) to the extent arising out of or relating to any Release of any Hazardous Materials at or from any real property owned, leased or operated by Sellers in connection with the Business prior to Closing, regardless of when discovered, or the transportation or disposal of Hazardous Materials prior to the Closing in connection with the Business;
(i) any Liabilities in respect of debt, loans or credit facilities of the Business, to the extent entered into prior to the Closing, and/or Sellers;
(j) any Liabilities arising out of, in respect of or in connection with the failure by Sellers to comply with any Law or Governmental Order or any breach or default by Sellers under any Contract, in each case to the extent arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets prior to the Closing;
(k) all Liabilities arising out of Seller any product recall occurring as a result of actions or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed omissions prior to Closing;
(gl) all the Liabilities arising out set forth on Schedule 2.4(l) of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder memberDisclosure Letter, or Affiliate of Seller); (ii) Taxes relating subject to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion terms thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or other Liability arising out of the ownership conduct or operation of the Purchased Assets, the Ethanol Plant Business or the Business before ownership or use of the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties Purchased Assets prior to the Closing DateClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Evoqua Water Technologies Corp.)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsPurchaser shall not assume or in any way become liable for Seller's debts, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller liabilities or 4 any of its Affiliates obligations of any nature whatsoeverwhatsoever (other than the Assumed Liabilities), whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating , whether known or unknown, whether due or to or arising out of the ownership or operation of become due, whether related to the Purchased Assets and regardless of when or the conduct of the Business prior by whom asserted, including, but not limited to the Closing;following (the “Excluded Liabilities”):
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes Seller's liabilities or obligations arising by reason of any breach or violation or alleged breach or violation by Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee law or successorregulation, by contract or pursuant any Lease or other agreement, contract, license, commitment, instrument, judgment, order or decree relating to the Purchased Assets;
(ii) any liability or obligation of Seller for any tax relating to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing period occurring on or prior to before the Closing Date Date;
(iii) any liability or by agreements entered into obligation of Seller relating to any legal or transactions entered into regulatory action, proceeding or claim arising out of or in connection with the Purchased Assets or any other conduct of Seller, or Seller's officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(miv) All Liabilities accruingany other liabilities or obligations of Seller not expressly assumed by Purchaser pursuant to Section 1.B. For purposes of this Section 1.C., arising out "Seller" shall be deemed to include all affiliates of Seller and any predecessors to Seller and any person or related entity with respect to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, which Seller is a successor-in-interest (including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or by operation of law, merger, liquidation, consolidation, assignment, assumption or otherwise). Seller hereby acknowledges that it is retaining the Purchased AssetsExcluded Liabilities, the Ethanol Plant or the Business before the Closing and any Seller shall pay, discharge and perform all such liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateobligations promptly when due.
Appears in 1 contract
Samples: Rail Car Purchase and Sale Agreement (PLM Equipment Growth Fund Iii)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any other provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale shall not be responsible to pay, perform or discharge any Liabilities of assetsSeller, and that Buyer is not a legal successor Principals, or any of Seller and is assuming only their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Seller shall, and shall cause Principals and each of their respective Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(aw) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(cx) any Liabilities of the Seller Liability for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or Principals, or any stockholder member, or Affiliate of Seller); (ii) Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax period Period, including, without limitation, any roll-back taxes the obligation for which arises after Closing as a result of any change in the use of the Real Property occurring prior to Closing; (ii) Taxes of Seller (or portion thereofPrincipals, or any stockholder or Affiliate of Seller) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations ofhereby, and are payable by, the Seller, whether such Taxes arise by Law or except as agreed to by the parties hereto under Section 8.4(a) or other provisions of otherwise set forth in this Agreement; or (iviii) all other Taxes attributable to any Tax period of Seller (or portion thereofPrincipals, or any stockholder or Affiliate of Seller) ending on or before the Closing Date of any Person imposed on kind or description (including any Liability for Taxes of Seller (or Principals, or any stockholder or Affiliate of Seller) for any Pre-Closing Tax Period that becomes a Liability of Buyer as a under any common law doctrine of de facto merger or transferee or successor, successor liability or otherwise by operation of contract or pursuant Law);
(y) any Liabilities relating to or arising out of the Excluded Assets;
(z) any Law (includingLiabilities in respect of any pending or threatened Action arising out of, but not limited to, Treasury Regulations Section 1.1502-6 relating to or comparable federal, state, local otherwise in respect of the operation of the Business or foreign Law) with respect to Liabilities or relationships existing on or prior the Purchased Assets to the Closing Date or by agreements entered into or transactions entered into extent such Action relates to such operation on or prior to the Closing Date;
(iaa) all Liabilities of Seller and its Affiliates with respect any product Liability or similar claim for injury to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant a Person or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising property which arises out of or related to the ownershipis based upon any express or implied representation, possessionwarranty, useagreement or guaranty made by Seller, operation or condition by reason of the Purchased Assetsimproper performance or malfunctioning of a product, the Ethanol Plant improper design or the Business before the Closingmanufacture, including Liabilities for personal injury failure to adequately package, label or death warn of hazards or damage to property other related product defects of any Third Party attributable to products at any time manufactured or arising out of the ownership sold or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.service performed by Seller;
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.03 or any other provision in this Agreement involve a purchase Agreement, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any kind or nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such whatsoever other liabilities and obligations shall be retained by and remain liabilities and obligations of than the Seller and/or its Affiliates, as applicable Assumed Liabilities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Seller shall (and the Stockholders shall cause Seller to), cause each of its Affiliates to pay, and pay and satisfy as and when due all Excluded Liabilities which each is respectively obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but shall not be limited to, the following Liabilities of Seller or Stockholders or any Affiliate:
(a) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including the fees and expenses of counsel, accountants, consultants, advisers and others;
(cb) any Liabilities of the Seller Liability for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, Business for any period or the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax period (or portion thereof) ending on or before the Closing DatePeriod; (iiiii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and by this Agreement or that are payable by, the Seller, whether such Taxes arise by Law or as agreed responsibility of Seller pursuant to by the parties hereto under Section 8.4(a) or other provisions of this Agreement6.09; or (iviii) all other Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on kind or description (including any Liability for Taxes that becomes a Liability of Buyer as a under any common law doctrine of de facto merger or transferee or successor, successor liability or otherwise by operation of contract or pursuant Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Law (includingLiabilities in respect of any pending or threatened Action arising out of, but not limited to, Treasury Regulations Section 1.1502-6 relating to or comparable federal, state, local otherwise in respect of the operation of the Business or foreign Law) with respect to Liabilities or relationships existing on or prior the Purchased Assets to the Closing Date or by agreements entered into or transactions entered into extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property regardless of the basis therefore and whether or not such claim arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller;
(g) any Liabilities arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(h) any Liabilities for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including any Liabilities associated with any claims for wages or other benefits, commissions, bonuses, expense reimbursement, paid sick leave, accrued vacation or other paid time off, workers’ compensation, severance, retention, termination or other payments;
(i) all any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of Seller and its Affiliates with respect or relating to Employees as provided in Exhibit Cfacts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising out of any actions or omissions of Seller;
(j) All Liabilities any trade accounts payable of Seller not otherwise set forth on Section 2.03(a) of the Disclosure Schedules;
(k) any Liabilities relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by Sellers’ customers to Seller on or before the Closing Date; (ii) did not arise in the ordinary course of the Business; or (iii) are not validly and its Affiliates related effectively assigned to Buyer pursuant to this Agreement;
(l) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 7.02 as Seller Indemnitees;
(m) any Liabilities under any other Contract, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the Green Shift License Agreement representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arose from the operation arise out of the Ethanol Plant or the Business relate to a breach by Seller of such Contracts prior to the Closing Date;
(kn) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All any Liabilities associated with debt, loans or credit facilities of Seller and/or the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Business owing to financial institutions; and
(mo) All any Liabilities accruing, arising out of, in respect of or related in connection with the failure by Seller or any of its Affiliates to the ownership, possession, use, operation comply with any Law or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateGovernmental Order.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated liabilities and obligations specifically assumed by this Agreement involve a purchase Buyer pursuant to Section 3.2, Buyer will not assume and sale of assetswill not be or become liable for, and that Buyer is not a legal successor any liabilities or obligations of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any kind or nature whatsoever, whether absolute, contingent, accrued, known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the pre-Closing ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the BusinessStations, the Assets pre-Closing or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the post-Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Excluded Assets, Seller’s employees or otherwise, including, without limitation, the Ethanol Plant cost of satisfying all monetary amounts required (pre-Closing or the Business before post-Closing) to remove all Encumbrances constituting Permitted Liens as of the Closing Date pursuant to clause (i) or (ii) of the definition thereof to which the Purchased Assets are subject as of the Closing Date (collectively, the “Excluded Liabilities”); provided, however, that Seller shall not be obligated to pay the cost of satisfying any monetary amount required to remove any Encumbrance constituting a Permitted Lien pursuant to clause (i) or (ii) of the definition thereof (x) to the extent that such amount is not yet due and any liabilities payable as of the Closing Date, until the date on which such amount becomes due and obligationspayable or (y) to the extent that such amount is being contested in good faith by appropriate proceedings, until the date on which the obligation with respect thereto is resolved by such appropriate proceedings, including any products liability settlement thereof. For the avoidance of doubt, the Excluded Liabilities include all Taxes of Seller, including any Taxes imposed on Seller as a result of the transactions contemplated by this Agreement, except for defective or off-spec Inventories sold any Taxes of Seller specifically allocated to Third Parties prior Buyer pursuant to the Closing DateSection 3.6.1 and Section 7.7.1.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities, and that Buyer is not a legal successor assuming any debt, liability, or obligation of Seller and is assuming only (whether relating to the Assumed Liabilities and not any other Liabilities of Business, the Seller Purchased Assets, or 4 any of its Affiliates otherwise) of any kind or nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable whatsoever (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”), and Seller (and/or, as applicable, Owner) shall retain and satisfy in due course all such Excluded Liabilities. The Without limiting the generality of the foregoing, Excluded Liabilities includeshall include the following:
(a) any Liabilities liabilities arising out of or relating to the Excluded Assets or any operations of Seller other than the Business;
(b) any liabilities or obligations for borrowed money of any kind (whether current, short-term or long-term, secured or unsecured, and including all overdrafts and negative cash balances) and related fees or expenses;
(c) all liabilities under all of Seller’s contracts, other than the Assigned Contracts and under the Assigned Contracts to the extent not Assumed Liabilities;
(d) all liabilities of Seller under, arising out of, or relating to, any Seller Benefit Plan or insurance policy;
(e) all Tax liabilities of Seller relating to operation of the Business or ownership of the Purchased Assets for the Pre-Closing Tax Period, and all Taxes of a Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with Party which may become due as a result of the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities liabilities and obligations of Seller with respect to any claim, demand, cause of action, suit, proceeding, judgment, loss, liability, or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closingdamage against Seller;
(g) any other debt, liability, or obligation of Seller (including all Liabilities arising out liabilities in respect of any Seller leased or relating to or associated with the Excluded Assetsowned automobiles);
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating except to the Businessextent included in the Final Closing Net Working Capital, the Assets or the Assumed Liabilities for all liabilities and obligations to all employees of any Tax period Seller accrued since its inception (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations ofincluding accruals reflecting all earned but unpaid vacations, holidays, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Datebonuses);
(i) all Liabilities of Seller income Taxes, payroll Taxes (except to the extent included in the Final Closing Net Working Capital), and its Affiliates other statutory federal, state, local, and non-U.S. Taxes with respect to Employees the Business or the ownership of the Purchased Assets for the Pre-Closing Tax Period, and all Taxes of Seller which may become due as provided in Exhibit Ca result of the transactions contemplated by this Agreement;
(j) All Liabilities any other liability of Seller that exists as of the Seller and its Affiliates related to the Green Shift License Closing that would otherwise become a liability or obligation of Buyer as a matter of Law in connection with this Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateother Transaction Documents.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by this Agreement involve a purchase and sale of assetscontrary in Section 1.11, and that Buyer is Purchaser shall not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller assume or 4 become responsible for any of its Affiliates of any nature whatsoeverSeller's duties, whether known obligations or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations that are not expressly assumed by Buyer hereunder being herein referred Purchaser pursuant to as the “terms of this Agreement, the Bills of Sale or the Real Estate Assignments (the "Excluded Liabilities”"), and Seller shall remain fully and solely responsible for all of Seller's debts, liabilities, contract obligations, expenses, obligations and claims of any nature whatsoever related to the Assets or the Hospitals unless assumed by Purchaser under this Agreement, in the Bills of Sale or in the Real Estate Assignments. The Excluded Liabilities shall include, without limitation:
(a) any Liabilities current liabilities of Seller with respect to the operation of any of the Hospitals prior to the Effective Time (i) which are not included in Net Working Capital, as determined pursuant to Sections 1.2 and 1.4 and (ii) which are not otherwise specifically included in the Assumed Obligations;
(b) all liabilities of Seller arising out of or relating to any act, omission, event or occurrence connected with the use, ownership or operation of any of the Hospitals or any of the Assets prior to the Effective Time, other than as specifically included in the Assumed Obligations;
(c) other than as specifically included in the Assumed Obligations, all liabilities arising out of or relating to any act, omission, event or occurrence prior to the Effective Time connected with Seller, or the operations or activities of Seller (including all such liabilities arising out of or relating to any claim, proceeding or investigation, collectively, "Litigation") arising out of or relating to any such act, omission, event or occurrence prior to the Effective Time including without limitation the Litigation set forth on Schedule 2.11);
(d) all liabilities of Seller in connection with claims of professional malpractice to the extent arising out of or relating to acts, omissions, events or occurrences prior to the Effective Time;
(e) all liabilities of Seller for their respective shares of matching contributions for eligible beneficiaries' 401(k) plans, Section 125 plans and other Seller Plans and all administrative costs associated with such welfare benefit plans arising prior to the Effective Time;
(f) all liabilities of Seller relating to the Seller Cost Reports;
(g) all liabilities of Seller for violations of any law, regulation or rule to the extent arising from acts or omissions prior to the Effective Time, including, without limitation, those pertaining to Medicare and expenses incurred Medicaid fraud or abuse;
(h) all liabilities of Seller under the Excluded Multi-Facility Contracts;
(i) all liabilities of Seller for commissions or fees owed to be incurred) for services performed by its legal, financial, accounting and investment banking advisors any finder or broker in connection with the transactions contemplated by hereunder;
(j) all intercompany receivables of any Seller owed or payable to any other Seller or any of Seller's affiliates;
(k) all liabilities and obligations of Seller in respect of periods prior to the Effective Time arising under the terms of the Medicare, Medicaid, Blue Cross, or other third party payor programs, and any liability of Seller arising pursuant to the Medicare, Medicaid, Blue Cross, or any other third party payor programs as a result of the consummation of any of the transactions contemplated under this Agreement;
(l) other than as specifically included in the Assumed Obligations, and subject to Sections 1.8 and 12.12, all federal, state, foreign or local tax liabilities or obligations of Seller in respect of periods ending prior to the Effective Time, including, without limitation, any broker’s fees income tax, any franchise tax, any sales and/or use tax, and any FICA, FUTA, workers' compensation and any and all other taxes due and payable as a result of the exercise by the Hospitals' Employees of such employees' right to vacation, sick leave and holiday benefits accrued while in the employ of Seller’s broker;
(bm) other than as specifically included in the Assumed Obligations, all liability for any and all claims by or on behalf of Seller's employees to the extent such liability relates to the period ending prior to the Effective Time, including, without limitation, liability relating to such time period for (i) any Liabilities pension, profit sharing, deferred compensation or any other employee health and welfare benefit plans, (ii) any EEOC claim, wage and hour claim, unemployment compensation claim or workers' compensation claim, and (iii) all employee wages and benefits, including, without limitation, accrued vacation, sick leave and holiday pay and taxes or other liability related thereto in respect of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebySeller's employees;
(cn) any Liabilities of the Seller for Intercompany Accounts;
all liabilities or obligations (dwithout regard to when such liability or obligation is actually due and/or payable by Seller) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of any breach by Seller prior to the ownership Closing of any Lease or operation Contract, but only with respect to the period from the date of the Purchased Assets or the conduct of the Business prior to breach through the Closing;
(fo) all Liabilities of Seller liabilities or obligations arising at any of its Affiliates time under the Assumed those Contracts to the extent required to be paid or performed prior to Closingidentified in Section 1.10(i);
(gp) all Liabilities arising out of amounts due from Seller or relating alleged to or associated with the Excluded Assets;
(h) all Liabilities with respect be due from Seller at any time to (i) Taxes of Seller (Fallon Community Health Plan or any stockholder member, or Affiliate other third party payor in respect of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or periods prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final OrderEffective Time, Green Plains Inc.including, respondentwithout limitation, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500any Offset Amounts; and
(mq) All Liabilities accruing, arising out of all liabilities or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateobligations identified on Schedule 1.12(q).
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.3 or any other provision in this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all contrary, Buyers shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates under of any kind or nature whatsoever other than the Assumed Contracts Liabilities (all such Liabilities other than the Assumed Liabilities, the “Excluded Liabilities”). Each Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the extent required to generality of the foregoing, the Excluded Liabilities shall include, but not be paid limited to, the following: any Liabilities of the Sellers arising or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated incurred in connection with the Excluded Assets;
(h) all Liabilities with respect to negotiation, preparation, investigation and performance of this Agreement and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others; any Liability for (i) any Taxes relating to the operation of Seller (the Business or any stockholder memberthe ownership, possession or Affiliate use of Seller)the Assets at or prior to the Closing; (ii) Taxes relating to Sellers’ share of the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a(including 75% of all Transfer Charges) or other provisions that are the responsibility of this Agreementthe Sellers pursuant to Section 6.12; or (iviii) all any other Taxes attributable of the Sellers or the Seller Parent (or any stockholder, member or Affiliate of the Sellers or the Seller Parent) of any kind or description (including any Liability for Taxes of the Sellers or the Seller Parent (or any stockholder, member or Affiliate of the Sellers or the Seller Parent), whether or not arising before or after, or maturing before or after, the Closing, or that becomes a Liability of Buyers under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or law); any Liabilities relating to or arising out of the Excluded Assets; any Liabilities in respect of any pending or threatened Proceeding arising out of, relating to or otherwise in respect of the operation of the Business or the Assets to the extent such Proceeding relates to such operation on or prior to the Closing Date; any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Sellers or the LicenseCos or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Sellers or the LicenseCos; any recall, design defect or similar claims of any products manufactured or sold or any service performed by Sellers or the LicenseCos; any Liabilities of the Sellers arising under or in connection with any Employee Plan providing benefits to any Tax period (present or portion thereof) ending on former employee of the Sellers or before LicenseCos; any Liabilities of the Closing Date Sellers for any present or former employees, officers, directors, retirees, independent contractors or consultants of any Person imposed on Buyer as a transferee or successorthe Sellers, by contract or pursuant to any Law (including, but not limited towithout limitation, Treasury Regulations Section 1.1502-6 any Liabilities associated with any claims for wages or comparable federalother benefits, statebonuses, local accrued vacation, workers' compensation, severance, retention, termination or foreign Law) with respect other payments; any claims or Liabilities under Environmental Laws, to Liabilities the extent arising out of or relationships relating to facts, circumstances or conditions existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior otherwise to the Closing Date;
extent arising out of any actions or omissions of the Sellers or the LicenseCos; any trade accounts payable of the Sellers to the extent not accounted for in the Net Working Capital in the Final Adjustment Amount; any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, manager, employee or agent of the Sellers (including with respect to any breach of fiduciary obligations by same); any Liabilities under the Excluded Contracts or any other Contracts (i) all Liabilities of Seller which are not validly and its Affiliates effectively assigned to Buyers pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect to Employees as provided thereto contained in Exhibit C;
this Agreement; or (jiii) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from arise out of or relate to a breach by the operation Sellers of the Ethanol Plant or the Business such Contracts prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Closing; any Liabilities associated with debt, loans or credit facilities of the matters described in Sellers and/or the Business owing to financial institutions; except that certain Consent Agreement the debt represented by the Intraparty Obligations will not be deemed an Excluded Liability of the LicenseCos (such Intraparty Obligations are, instead, an Asset); and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All any Liabilities accruing, arising out of, in respect of or related in connection with the failure by the Seller or any of their Affiliates to the ownershipcomply with any law, possessionregulation, useregulatory bulletin, operation regulatory guidance or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateGovernmental Order.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase and sale of assetsor any other writing to the contrary, and that Buyer is not a legal successor of Seller and Acquisition Subsidiary is assuming only the Assumed Liabilities Contract and the Third Party Software Agreements (as defined in the Intellectual Property Agreement), and is not assuming any other Liabilities liability or obligation of Seller (or any predecessor of Seller with respect to the Seller or 4 any Business) of its Affiliates of any nature whatsoeverwhatever nature, whether known presently in existence or unknown, absolute or contingent, and whether presently existing or hereafter arisingarising hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly being assumed by Buyer hereunder being herein referred to as the “"Excluded Liabilities”"). The Notwithstanding any provision in this Agreement or any other writing to the contrary, Excluded Liabilities include:
(a) any Liabilities liability or obligation of the Seller, or any member of any consolidated, affiliated, combined or unitary group of which Seller is or has been a member, for costs and expenses Taxes; provided that Transfer Taxes incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this AgreementAgreement and Apportioned Obligations shall be paid in the manner set forth in Section 8.03 hereof;
(b) any liability or obligation relating to employees, former employees, employee benefits or compensation arrangements existing on or prior to the Closing Date, including, without limitation, any broker’s fees liability or obligation under any of Seller’s broker;
employee benefit agreements, plans or other arrangements listed on Seller Disclosure Schedules 9.01(a) or (b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyc);
(c) any Liabilities of the Seller for Intercompany AccountsEnvironmental Liability;
(d) all obligations and liabilities arising from any Liabilities of action, suit, investigation, or proceeding relating to the Purchased Assets or the Intangible Assets that are pending on the Closing Date against Seller for asset retirement obligations related to railcarsor any Purchased Asset before any court or arbitrator or any governmental body, agency or official;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts liabilities and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) obligations relating to any products manufactured or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of sold by Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date (excluding any products or by agreements entered into or transactions entered into on or prior to assets included in the Closing Date;
(i) all Liabilities of Seller Purchased Assets), including, without limitation warranty obligations and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500product liabilities; and
(mf) All Liabilities accruingany liability or obligation relating to an Excluded Asset. Nothing in this Section 2.04 shall be deemed to supersede or in any way invalidate Buyer's indemnification obligations under Section 11.02(b)(ii) of this Agreement or under Sections 4.4, arising out of or related to the ownership, possession, use, operation or condition 6.1 and 6.2 of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateIntellectual Property Agreement.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision of this Agreement involve a purchase to the contrary, it is understood and sale of assetsagreed that, except for the Assumed Liabilities, neither the Purchaser nor Global shall assume, and that Buyer is shall not a legal successor of Seller and is assuming only the Assumed Liabilities and not be responsible to pay, any debts, liabilities, obligations, contracts, leases, commitments or other Liabilities undertakings of the Seller or 4 any of its Affiliates of any nature whatsoeverSeller, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out , as each of the ownership foregoing shall exist on the Closing Date or operation as the foregoing shall exist after the Closing Date by reason of the Purchased Assets Seller's acts or the conduct of the Business omissions prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder memberto, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before after the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations liabilities of the following types, all of which shall remain the sole liability and responsibility of the Seller (collectively, the "Excluded Liabilities"): (i) liabilities arising out of the relationship between the Seller and its employees, including, but not limited to, liabilities pursuant to any employment agreement (oral or written), liabilities for payroll, payroll withholding taxes, unfunded pension liabilities, liabilities under health and welfare plans, liabilities in connection with employment discrimination or sexual harassment and employment termination liabilities, and any interest and penalties related to any of the foregoing; (ii) Taxes (as defined in Section 1.1502-6 3.8 hereof) arising out of the operation of the Business and/or payable by the Seller; (iii) tort liabilities, including, but not limited to, liabilities arising from the sale or comparable federaluse of the Seller's products; (iv) product warranty and return liabilities, stateexcept as set forth in Section 1.2(a)(iv); (v) claims arising out of any Environmental Laws (as defined in Section 3.19 hereof); (vi) litigation, local whether disclosed or foreign Lawundisclosed, including, but not limited to, the litigation set forth on Schedule 3.12 annexed hereto; (vii) with respect any undisclosed liabilities; (viii) liabilities pursuant to Liabilities any contract, order, payable, commitment, obligation, agreement, lease or relationships existing undertaking set forth on Schedule 1.1(b) hereto; (ix) liabilities or litigation arising out of any infringement action or claim, or threatened action or claim, involving the Intellectual Property, arising prior to the Closing Date or by agreements entered into due to acts or transactions entered into on or omissions of the Seller prior to the Closing Date;
(i) all Liabilities , or any liabilities or litigation commenced or threatened against the Seller by a third party involving the Seller's infringement of Seller and its Affiliates such third party's rights with respect to Employees as provided patents, trademarks, tradenames, copyrights or other intellectual property, in Exhibit C;
any case, including, but not limited to, the actions or threatened actions set forth on Schedule 3.11 hereto; or (jx) All Liabilities of liabilities expressly not assumed by the Seller and its Affiliates related Purchaser pursuant to the Green Shift License Agreement to the extent such Liabilities arose from the operation provisions of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datethis Agreement.
Appears in 1 contract
Excluded Liabilities. The Except to the extent any of the following liabilities or obligations are governed by an inconsistent provision in a written agreement among the parties acknowledge that hereto [(such as the transactions contemplated by this Agreement involve a purchase Interconnection Agreement)], Transferee shall not assume and sale shall not be responsible to pay, perform or discharge any liabilities or obligations of assets, and that Buyer is not a legal successor of Seller and is assuming only Transferor other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever(collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The , regardless of whether such Excluded Liabilities include:
(a) any Liabilities of are asserted before or after the Seller for costs and expenses incurred (or Effective Time. Notwithstanding anything to be incurred) for services performed by its legal, financial, accounting and investment banking advisors the contrary in connection with the transactions contemplated by this Agreement, includingTransferor’s indemnification obligations with respect to Excluded Liabilities as set forth in Section 8.2.3 shall survive the Closing. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
2.4.1. any liabilities or obligations arising out of or relating to (i) the ownership of the Transferred Assets prior to the Effective Time; (ii) the operation of the Transmission Facilities prior to the Control Date; or (iii) the design, engineering, or construction of the Transmission Facilities, including without limitation any completion of construction by Transferor after the Effective Time pursuant to Section 6.9;
2.4.2. any liabilities or obligations arising out of or relating to any payment claims or lien rights which may be asserted by any contractor, subcontractor or vendor of any tier, whether such assertion is made before or after the Effective Time and whether such rights relate to work performed before the Effective Time or after the Effective Time pursuant to Section 6.9;
2.4.3. any liabilities or obligations arising out of or relating to any Permit or Governmental Order for the construction of the Transmission Facilities, or the failure by Transferor or any of its Affiliates to comply with any Applicable Law, Permit or Governmental Order relating to the Transferred Assets;
2.4.4. any liabilities or obligations arising out of or relating to the siting of the Transmission Facilities, including without limitation, any broker’s fees failure to obtain necessary approvals or Permits for the siting of Seller’s brokerthe Transmission Facilities;
(b) 2.4.5. any Liabilities of the Seller relating to its performance liabilities or obligations under this Agreement any Partially Assigned Contract and the Transaction Documents and the transactions contemplated hereby and therebynot resulting from any amendment entered into by Transferee;
(c) 2.4.6. any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement liabilities or obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the ClosingExcluded Assets, including without limitation Transferor’s generation facilities;
(f) all Liabilities of Seller 2.4.7. any liabilities or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to obligations for (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Transferred Assets or the Assumed Liabilities for any Tax taxable period (or portion thereof) ending on or before prior to the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, Effective Time and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities any taxable period beginning before and ending after the Effective Time, the portion of such taxable period that occurs before the Effective Time, and (ii) any other Taxes of Transferor or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Dateany Affiliates of Transferor for any taxable period;
(i) all Liabilities 2.4.8. any liabilities or obligations in respect of Seller and any pending or threatened action or claim relating to Transferor, its Affiliates, or the Transferred Assets;
2.4.9. any liabilities or obligations of Transferor or its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant for any present or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500former employee or independent contractor; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and 2.4.10. any liabilities and obligationsor obligations associated with debt, including any products liability for defective loans or off-spec Inventories sold to Third Parties prior to the Closing Datecredit facilities of Transferor or its Affiliates.
Appears in 1 contract
Samples: Asset Transfer Agreement
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsNeither Buyer nor any Buyer Designee shall assume or be obligated to pay, and that Buyer is not a legal successor perform or otherwise assume or discharge any liabilities or obligations of Seller and is assuming only the Assumed Liabilities and not or any other Liabilities Affiliate of the Seller or 4 any of its Affiliates of any nature whatsoeverSeller, whether direct or indirect, known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of except for the Seller and/or its Affiliates, as applicable Assumed Liabilities (all of such liabilities and obligations not expressly so assumed by Buyer hereunder being herein referred to herein as the “Excluded Liabilities”)) and Seller or a Subsidiary shall pay, perform and discharge all such Excluded Liabilities. The For the avoidance of doubt, the parties agree that the Excluded Liabilities include, but are not limited to, any and all liabilities or obligations set forth or described in paragraphs (a) through (g) below, whether or not any such liability or obligation has a value for accounting purposes or is carried or reflected on or specifically referred to in Seller’s or the applicable Subsidiary’s financial statements:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerExcluded Taxes;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyEnvironmental Liabilities;
(c) any Liabilities and all liabilities or obligations arising out of the Seller for Intercompany Accountsor related to any Excluded Asset;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth identified in this AgreementSection 2.4(a), any and all Indebtedness, Contracts and Liabilities of any kind, character liabilities or description (whether known or unknown, accrued, absolute, contingent or otherwise) obligations relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated in connection with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes the employment and any termination of such employment by Seller of any employee or former employee of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; and/or (iiiii) Taxes that arise out any employee’s or former employee’s or his/her dependents’ rights or obligations under any fringe benefit of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the employment with Seller, whether such Taxes including any Benefit Plan of Seller or an Affiliate of Seller;
(e) any and all liabilities or obligations in connection with, or relating to, any actions, suits, claims or proceedings against Seller or any Subsidiary which arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending accrue on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(if) all Liabilities Any benefit liabilities relating to or arising in connection with Section 4980B of the Code (COBRA) to provide continuation of health care coverage to employees or former employees of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose or their dependents arising from the operation of the Ethanol Plant a qualifying event occurring on or the Business prior to before the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(mg) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition Any liabilities of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateBenefit Plans.
Appears in 1 contract
Samples: Asset Purchase Agreement (Triquint Semiconductor Inc)
Excluded Liabilities. The parties Notwithstanding anything to the contrary in this Agreement, the Parties expressly acknowledge and agree that Buyer shall not assume, be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of the transactions contemplated by this Agreement involve Selling Entities, whether existing on the Closing Date or arising thereafter as a purchase and sale result of assetsany act, and omission or circumstances taking place prior to the Closing, other than the Assumed Liabilities (all such Liabilities that Buyer is not a legal successor of Seller and is expressly assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder under Section 2.3 being herein referred to collectively as the “Excluded Liabilities”). The Without limiting the foregoing, Buyer shall not be obligated to assume, does not assume, and hereby disclaims all the Excluded Liabilities, including the following Liabilities includeof any of the Selling Entities or of any predecessor of any of the Selling Entities, whether incurred or accrued before or after the Petition Date or the Closing:
(a) Except as provided in Section 2.3(g) of this Agreement, all Taxes of any Liabilities of the Seller Selling Entities, including (i) Taxes imposed on any of the Selling Entities for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors any period and/or in connection with the sale of the Acquired Assets (including, for the avoidance of doubt, the Transfer Taxes), (ii) all taxes imposed on any of the Selling Entities under Treasury Regulations Section 1.1502-6 and similar provisions of state, local or foreign Tax Law, including all sales Taxes collected by the Selling Entities in connection with the pre-Closing operation of the Business and (iii) all Taxes arising out of or related to the Business or to the Acquired Assets for all periods ending prior to the Closing;
(b) all Liabilities of any of the Selling Entities incurred in connection with or related to the Bankruptcy Case and/or its administration, including any of the Selling Entities’ Liabilities relating to the purchase of goods or services before or after the Petition Date (including the Allowed 503(b)(9) Claims that are in excess of the 503(b)(9) Claim Cap, and excluding Liabilities under Assumed Purchase Orders and the Allowed 503(b)(9) Claims up to the 503(b)(9) Claim Cap) and Liabilities relating to legal services, accounting services, financial advisory services, investment banking services or any other professional services (“Professional Services”) performed in connection with the Bankruptcy Case, this Agreement and/or any of the transactions contemplated, hereby, and any pre-Petition Date or post-Petition Date Claims or other Liabilities, including for such Professional Services;
(c) except to the extent expressly assumed by Buyer pursuant to Section 7.7, all Liabilities or claims arising out of, relating to or with respect to (i) the employment or performance of services for, or termination of employment or services for, or potential employment or engagement for the performance of services for, any of the Selling Entities (or any predecessor) of any individual Person (including the Transferred Employees) or any Person acting as a professional employer organization, employee leasing company or providing similar services on or prior to the Closing (including as a result of the transactions contemplated by this Agreement), including, without limitation, including Liabilities or claims for or relating to any broker’s fees non-compliance of Seller’s broker;
the Selling Entities or the Business with (band claims that have been or may be made under any pending Action in connection with) any Laws relating to wages, hours, pay equity, employment equity, conditions of employment, employment standards, human rights, employee privacy, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation, the collection and payment of withholding Taxes and/or social security Taxes and contributions and any similar Tax or contribution, severance (including statutory severance), separation, or notice pay or benefits (including under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended and Section 4980B of the Code), Liabilities of the Seller relating Selling Entities pursuant to its performance under this Agreement the WARN Act, including in connection with the Selling Entities’ termination of employment of any Current Employees (and the Transaction Documents Selling Entities shall cause to be filed and the transactions delivered all notices in respect thereof) as a result of any transaction contemplated hereby and thereby;
by this Agreement, or any form of accrued or contingent compensation (cincluding leave entitlements), or (ii) any Seller Benefit Plan, subject to ERISA or otherwise (including any Liabilities related to any Seller Benefit Plan which is an “employee pension benefit plan” (as defined in Section 3(2) of the Seller for Intercompany AccountsERISA) that is subject to Section 302 or Title IV of ERISA or Code Section 412), irrespective of whether such Liabilities are incurred, recognized, paid or made, as applicable, on, before or after Closing;
(d) except as expressly assumed by Buyer under this Agreement, all Liabilities of any of the Selling Entities with respect to and/or claims of any Current Employees, Excluded Employees, Former Employees or Transferred Employees with respect to any period, including any Liabilities with respect to and/or claims of any Transferred Employees arising out of such Transferred Employees’ employment by any of the Seller for asset retirement obligations related to railcarsSelling Entities;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the ClosingExcluded Assets;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts Selling Entities in respect of the Business or the Acquired Assets arising as a result of any Action initiated at any time, to the extent required in any way related to be paid matters or performed circumstances occurring or existing prior to the Closing;
(g) all Liabilities of any of the Selling Entities arising from and/or based on, directly or indirectly, infringement or misappropriation of any Intellectual Property arising out of or relating related to any conduct of any of the Selling Entities or associated with any of the Excluded AssetsSelling Entities’ operation of the Business;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation Selling Entities in respect of the transactions contemplated hereby which constitute obligations ofIndebtedness, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to than any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or Indebtedness assumed pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date3.2;
(i) all Liabilities arising in connection with any violation of Seller and its Affiliates with respect any applicable Law or Order relating to Employees as provided in Exhibit Cthe period prior to the Closing by any of the Selling Entities;
(j) All any Liabilities of the Seller and its Affiliates related arising under any escheatment, abandoned property or similar Law with respect to the Green Shift License Agreement to the extent such Assumed Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Datewhich otherwise remain with any Selling Entity;
(k) All Liabilities any Claim arising prior to the Closing and not assumed by Buyer pursuant to Section 2.3, including all accounts payable and other amounts payable of Seller and their respective Affiliates related any Selling Entity, including any such accounts payable or other amounts owed by any of the Selling Entities to Syngenta/ADM Actionsany of the other Selling Entities;
(l) All Liabilities associated with the matters described all Cure Payments in that certain Consent Agreement and Final Orderrespect of any Contract, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; andReal Property Lease or Assumed Contract;
(m) All any Liabilities accruing, to any shareholder or other equity holder of any of the Selling Entities or any predecessor of any of the Selling Entities;
(n) any Liabilities arising out of or related to the ownership, possession, use, operation any Legal Proceeding commenced or condition threatened against any of the Purchased Assets, the Ethanol Plant Selling Entities or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out predecessor thereof; and
(o) any other Liability of the ownership or operation of Selling Entities that is not expressly included among the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateAssumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase Assumed Obligations, Purchaser shall not assume and sale of assets, and that Buyer is shall not a legal successor be liable or responsible for any Liabilities of Seller and is assuming only the Assumed Liabilities and not or any other Liabilities Affiliate of Seller, or any claim against any of the Seller or 4 any of its Affiliates foregoing, of any nature whatsoeverkind, whether known or unknown, absolute or contingent, and whether presently existing absolute, or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable otherwise (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Seller, shall be solely liable for, and shall perform and discharge, when due and on a timely basis, all Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this AgreementLiabilities, including, without limitation, any broker’s fees obligations under any Contracts that are not Assumed Contracts. The Excluded Liabilities include, but are not limited to, the following Liabilities and obligations of Seller’s broker:
(a) Any Liabilities under any Contracts that are not included in the Assumed Contracts;
(b) Any Liabilities arising from or in connection with any Liabilities of the breach or default (or alleged breach or default) by Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyany Contract or any Assumed Contract;
(c) any Any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all including Liabilities with respect to Taxes of another Person, whether by contract or otherwise) for Taxes (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); , and (ii) Taxes relating imposed on or with respect to the Business, the Assets Seller or the Assumed Liabilities Purchased Assets for any Tax taxable period (or portion thereof) ending on or before prior to the Closing Date; Date or on Seller after the Closing Date and (iii) Taxes that arise charges related to or arising from the sale of the Purchased Assets contemplated hereby, except as set forth in Section 4.4 with respect to Transfer Taxes;
(d) For damage or injury (real or alleged) to person or property arising from the ownership, possession or use of any Purchased Assets prior to Closing;
(e) Except to the extent arising out of the consummation a breach of the transactions contemplated hereby which constitute Purchaser’s obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under set forth in Section 8.4(a) or other provisions 9.1 of this Agreement; or , to Seller’s employees (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before which for clarity shall exclude the Closing Date of any Person imposed on Buyer as a transferee or successorTransferred Employees after the Closing), by contract or pursuant to any Law (including, including but not limited to, Treasury Regulations Section 1.1502-6 those for accident, disability, health (including unfunded medical liabilities) and worker’s compensation insurance or comparable federalbenefits, stateand all other Liabilities to employees arising from events or occurrences prior to the Closing, local or foreign Lawarising from or relating to claims or Liabilities for benefits or pay under any employee benefit plan, compensation policy, individual employment contract or collective bargaining agreement, or any severance payment, through the Closing or after the Closing;
(f) With respect to any Proceeding, pending or threatened either on or prior to or after the Closing with respect to Liabilities matters occurring prior to Closing, whether or relationships existing not identified in Section 6.10 of the Disclosure Schedule;
(g) Arising from or in connection with any administrative ruling or other order, stipulation or decree of any Governmental Body, or the violation of any federal, state or local act, statute, rule or regulation, decree or ordinance prior to Closing;
(h) Arising from or relating to (i) any failure to comply with Environmental Health, and Safety Requirements on or prior to the Closing Date and/or (ii) acts or by agreements entered into or transactions entered into omissions that occurred on or prior to the Closing Datethat result in actual Liability pursuant to any Environmental Law;
(i) all Liabilities Any obligations giving rise to the Permitted Encumbrances described in clauses (b) and (c) of Seller and its Affiliates with respect the definition of Permitted Encumbrances to Employees as provided in Exhibit C;the extent relating to any period before the Closing; or
(j) All Liabilities of the Seller and its Affiliates related Arising with respect to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateEmployee Benefit Plans.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.03 or any other provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any kind or nature whatsoever, whether known or unknown, absolute or contingentwhatsoever other than the Assumed Liabilities (the "Excluded Liabilities"). Seller shall, and whether presently existing or hereafter arisingshall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. All such other liabilities and obligations shall be retained by and remain liabilities and obligations Without limiting the generality of the Seller and/or its Affiliatesforegoing, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(cb) any Liabilities of the Seller Liability for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, shareholder or Affiliate of Seller); (ii) Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax period (or portion thereof) ending on or before the Closing DatePeriod; (iiiii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and or that are payable by, the Seller, whether such Taxes arise by Law or as agreed responsibility of Seller pursuant to by the parties hereto under Section 8.4(a) or other provisions of this Agreement6.14; or (ivii) all any Liability for Taxes attributable of Seller that is related to any Tax period (the operation of the Business or portion thereof) ending the Purchased Assets on or before the Closing Date and that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law;
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation prior to Closing;
(e) any product Liability or similar claim for injury to a Person imposed on Buyer as or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a transferee product, improper design or successormanufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by contract Seller;
(f) any recall, design defect or pursuant to similar claims of any Law products manufactured or sold or any service performed by Seller;
(g) any Liabilities of Seller arising under or in connection with any Benefit Plan of Seller, except the Assumed Benefit Plan Claims;
(h) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, but not limited towithout limitation, Treasury Regulations Section 1.1502-6 any Liabilities associated with any claims for wages or comparable federalother benefits, statebonuses, local accrued paid time off, workers' compensation, severance, retention, termination or foreign Lawother payments;
(i) with respect any Environmental Claims, or Liabilities under Environmental Laws, to Liabilities the extent arising out of or relationships relating to facts, circumstances or conditions existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior otherwise to the Closing Date;
(i) all Liabilities extent arising out of Seller and its Affiliates with respect to Employees as provided in Exhibit Cany actions or omissions of Seller;
(j) All any trade accounts payable of Seller (i) to the extent not included as a Current Liability in Closing Working Capital; (ii) which constitute intercompany payables owing to Affiliates of Seller; (iii) which constitute debt, loans or credit facilities to financial institutions; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business' customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and its Affiliates related effectively assigned to Buyer pursuant to this Agreement;
(l) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Seller Indemnitees;
(m) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the Green Shift License Agreement representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arose from the operation arise out of the Ethanol Plant or the Business relate to a breach by Seller of such Contracts prior to the Closing DateClosing;
(kn) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All any Liabilities associated with debt, loans or credit facilities of Seller and/or the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Business owing to financial institutions; and
(mo) All any Liabilities accruing, arising out of, in respect of or related in connection with the failure by Seller or any of its Affiliates to the ownership, possession, use, operation comply with any Law or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties Governmental Order prior to the Closing DateClosing.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase to the contrary, Purchaser and sale of assets, and that Buyer is not a legal successor of Seller and is the Designated Purchaser(s) (if any) are assuming only the Assumed Liabilities and are not assuming, and shall not be deemed to have assumed, any other Liabilities of any Seller of whatever nature (whether arising prior to, at the Seller time of, or 4 any of its Affiliates of any nature whatsoeversubsequent to Closing), whether known absolute, accrued, contingent or unknownotherwise, absolute whether due or contingentto become due and whether or not assets, and whether presently or not known or unknown or currently existing or hereafter arising. All such other liabilities arising or matured or unmatured, direct or indirect, and obligations Sellers shall be retained by solely and remain liabilities exclusively liable for any and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as Liabilities, including, without limitation, those Liabilities set forth below (collectively, the “Excluded Liabilities”). The Excluded Liabilities include:):
(a) any all Liabilities arising out of, relating to or otherwise in respect of the Purchased Assets and/or Business arising prior to the Closing, other than the Assumed Liabilities;
(b) all Liabilities of Sellers relating to or otherwise arising, whether before, on or after the Seller Closing, out of, or in connection with, any of the Excluded Assets;
(c) except as set forth in Section 1.3(d), any and all Liabilities of Sellers for costs Indebtedness, including (i) all intercompany Indebtedness among Sellers and expenses incurred (ii) all guarantees of third party obligations and reimbursement obligations to guarantors of Sellers’ obligations or under letters of credit;
(d) except as set forth in Section 1.3(i), all (i) Liabilities of Sellers for any Taxes (including, without limitation, Taxes payable by reason of contract, assumption, transferee or successor Liability, operation of Law, pursuant to Treasury Regulation Section 1502-6 (or to be incurredany similar provision of any state or local law) for services performed or otherwise and any Taxes owed by its legal, financial, accounting Sellers and investment banking advisors arising in connection with the consummation of the transactions contemplated by this Agreement) arising or related to any period(s) on or prior to the Closing Date, (ii) Taxes imposed on any Person that are the responsibility of Sellers pursuant to Section 11.1 (including, without limitationfor the avoidance of doubt, any broker’s fees the amount of Seller’s broker;
transfer taxes required to be paid by Sellers in consummating this Agreement, as set forth in Section 11.1(a)), and (biii) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcarsTaxes arising from or in connection with an Excluded Asset;
(e) except as expressly set forth any and all Liabilities of Sellers in this Agreement, all Indebtedness, respect of the Rejected Contracts and Liabilities of any kind, character other Contracts to which any Seller is party or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closingis otherwise bound that are not Assigned Contracts;
(f) except for Straddle Payroll and as provided in Sections 1.3(e) and 1.3(f), all Liabilities with respect to employment or other provision of services, compensation, severance, benefits or payments of any nature owed to any current or former employee, officer, director, member, partner or independent contractor of any Seller or any ERISA Affiliate (or any beneficiary or dependent of any such individual), whether or not employed by Purchaser or any of its Affiliates under after the Assumed Contracts Closing, that (i) arises out of or relates to the extent required employment, service provider or other relationship between any Seller or ERISA Affiliate and any such individual, including but not limited to be paid the termination of such relationship, (ii) arises out of or performed prior relates to Closingany Benefit Plan or (iii) arises out of or relates to events or conditions occurring on or before the Closing Date;
(g) drafts or checks outstanding at the Closing (except to the extent an Assumed Liability);
(h) all Liabilities under any futures contracts, options on futures, swap agreements or forward sale agreements;
(i) all Liabilities related to the WARN Act, to the extent applicable, for any action resulting from Employees’ separation of employment prior to or on the Closing Date;
(j) all Liabilities of any Seller to its equity holders respecting dividends, distributions in liquidation, redemptions of interests, option payments or otherwise, and any Liability of any Seller pursuant to any Affiliate Agreement;
(k) except as set forth on Schedule 1.4(k), all Liabilities arising out of or relating to any business or associated with the Excluded Assetsproperty formerly owned or operated by any Seller, any Affiliate or predecessor thereof, but not presently owned and operated by Sellers;
(hl) all Liabilities with respect relating to claims, actions, suits, arbitrations, litigation matters, proceedings, investigations or other Actions (iin each case, whether involving private parties, Authorities, or otherwise) Taxes of Seller (involving, against, or affecting any Purchased Asset, the Business, any Seller, or any stockholder memberassets or properties of any Seller, whether commenced, filed, initiated, or Affiliate threatened before or after the Closing and whether relating to facts, events, or circumstances arising or occurring before or after the Closing;
(m) all obligations of Seller); (ii) Taxes relating Sellers arising and to be performed prior to the Closing Date arising from or related to the Business, the Purchased Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing DateLiabilities;
(in) all Environmental Liabilities and Obligations;
(o) all Liabilities of any Seller and its Affiliates with respect or their predecessors arising out of any contract, agreement, Permit, franchise or claim that is not transferred to Employees Purchaser as provided in Exhibit Cpart of the Purchased Assets or, is not transferred to Purchaser because of any failure to obtain any third-party or governmental consent required for such transfer;
(jp) All all Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Dateset forth on Schedule 1.4(p);
(kq) All all Liabilities of Seller and their respective Affiliates related relating to Syngenta/ADM Actionsthe ESOP;
(lr) All all Liabilities associated with relating to the matters described Pension Plans;
(s) all Liabilities relating to any withdrawal from a “multiemployer plan”, as defined in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Section 3(37) of ERISA; and
(mt) All any Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateunder Section 8.15(b).
Appears in 1 contract
Samples: Asset Purchase Agreement (Paperweight Development Corp)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only Except for the Assumed Liabilities and Liabilities, Buyer shall not any other Liabilities assume or be responsible for the performance of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerthe following Liabilities (collectively, the “Excluded Liabilities”):
(a) Any Liability of Seller in respect of or otherwise arising from the operation or use of the Excluded Assets;
(b) any Liabilities Any Liability of Seller arising from the Seller relating to its making or performance under of this Agreement and the Transaction Documents and or a Related Agreement or the transactions contemplated hereby and or thereby;
(c) Any Liability of Seller under the Assigned Contracts or Assigned Leases (i) in respect of payment obligations for goods delivered or services rendered prior to the Closing Date or (ii) relating to a breach or default by Seller of any Liabilities of its obligations thereunder occurring prior to the Seller for Intercompany AccountsClosing Date, regardless of whether such Liability arises or is discovered on or after the Closing Date;
(d) any Except for those Assumed Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this AgreementSection 2.3(c), all Indebtednessany Liability of Seller (i) for any compensation, Contracts benefits, employment Taxes, workers compensation benefits and other similar Liabilities in respect of the Transferred Employees (including under the Generation CBA, any kindEmployee Benefit Plan of Seller, character or description any other agreement, plan, practice, policy, instrument or document relating to any of the Transferred Employees) to the extent arising or accruing prior to the Closing Date, (whether known or unknown, accrued, absolute, contingent or otherwiseii) relating to the Transferred Employees for which Seller is responsible under Section 5.8, or arising out (iii) in respect of the ownership any discrimination, wrongful discharge, unfair labor practice or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or similar Claim under applicable employment Laws by any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities Transferred Employee arising out of or relating to acts or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or omissions occurring prior to the Closing Date;
(e) Any Liability of Seller arising from or associated with any Intercompany Arrangement, other than Liabilities under those Assigned Contracts set forth on Schedule 2.2(j);
(f) Any Liability of Seller for any fines or penalties imposed by a Governmental Authority resulting from (i) all Liabilities any investigation or proceeding pending prior to the Closing Date or (ii) illegal acts or willful misconduct of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(kg) All Liabilities Any Liability for Taxes (including, with respect to property Taxes, payments in addition to or in lieu of Seller Taxes and their respective Affiliates related to Syngenta/ADM Actions;
(lthe Property Tax Stabilization Payments) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related relating to the ownership, possessionoperation, use, operation sale or condition use of the Purchased Assets, the Ethanol Plant or the Business before Acquired Assets prior to the Closing, including Liabilities except those Taxes for personal injury which Buyer is liable pursuant to Section 2.7, Section 5.12 and Section 5.13;
(i) any Environmental Liability to the extent such Environmental Liability arises out of or death or damage relates to property any Governmental Authority’s allegation and investigation of any Third Party attributable violations of Environmental Laws by Seller, and (ii) any Liability relating to the treatment, disposal, storage, discharge, or arising out Release of Hazardous Substances that were generated at the Sites through ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date, including relating to recycling or the arrangement for such activities at, or the transportation to, any Offsite Disposal Facility by Seller, prior to the Closing Date (such liabilities, the “Excluded Environmental Liabilities”). For the avoidance of doubt, it is the intention of the Parties that this Section 2.4(h) shall exclusively define those Environmental Liabilities constituting Excluded Liabilities hereunder, and that no other provision of this Section 2.4 shall be construed to include any Environmental Liabilities; and
(i) Any Liability of Seller in respect of accounts payable or accrued expenses.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Public Service Co of New Hampshire)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase and sale of assetsor any other writing to the contrary, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and is not assuming any other Liabilities liability or obligation of the Seller or 4 any of its Affiliates of any whatever nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing in existence or hereafter arisingarising hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly being assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The , and Seller will pay all such Excluded Liabilities includeas they become due. Notwithstanding anything to the contrary in this Section 2.04, none of the following shall be Assumed Liabilities for the purposes of this Agreement:
(a) any Liabilities Any liability or obligation for Tax arising from or with respect to the Acquired Assets or the operations of the Seller for costs and expenses Business which is incurred (in or attributable to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerPre-Closing Tax Period;
(b) any Liabilities of Except for the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required payables to be paid assumed pursuant to Section 2.03(b), any liability or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities obligation for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are accounts payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into accruals arising on or prior to the Closing Date;
(ic) all Liabilities Any liability or obligation under the Contracts that arises after the Closing Date but that arises out of Seller and its Affiliates or relates to any default, breach, violation or failure to perform or comply with respect to Employees as provided in Exhibit Cthe terms thereof that occurred on or before the Closing Date;
(jd) All Liabilities Any liability or obligation under any Excluded Contract whether arising before or after the Closing Date;
(e) Any liability or obligation, including indemnification and warranty obligations, arising out of the Seller and its Affiliates or related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant any products or services, manufactured, distributed or sold in connection with the Business on or prior to the Closing Date;
(kf) All Liabilities of Seller and their respective Affiliates related Any liability or obligation relating to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Orderemployees of, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation independent contractors or condition of the Purchased Assetsconsultants to, the Ethanol Plant Business for all periods ending on or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date, including, without limitation, workers’ compensation claims, disability and occupational diseases in each case without regard to whether such injuries, claims, conditions, events and occurrences are known or otherwise manifest on or prior to the Closing Date and any bonuses, vacation pay, or severance or retention obligations to such employees, whether or not accrued on Seller’s books and records; and
(g) Any liability or obligation relating to any Excluded Asset.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions Except for those specifically contemplated by this Agreement involve a purchase and sale of assetsSection 2.2 hereof, and that Buyer is Purchaser will not a legal successor assume or perform any liabilities or obligations of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character whether disclosed or description (undisclosed, arising or accruing on or before the Closing Date, whether known or unknown, accrued, absolute, contingent or otherwise) relating , including but not limited to or arising out any of the ownership following obligations and liabilities, all or operation any of which shall constitute Excluded Liabilities and shall not be assumed or discharged by Purchaser:
(a) any liabilities for legal, accounting, audit and investment banking fees, brokerage commissions, and any other like expenses incurred by Seller in connection with the negotiation and preparation of this Agreement and the sale of the Purchased Assets to Purchaser;
(b) any liabilities of Seller for (i) taxes on or measured by income, (ii) franchise taxes, (iii)any other tax or withholding obligation, with respect to the conduct of the Division Business or otherwise, accruing or arising prior to the Closing, or (iv)ERICA obligations;
(fc) all Liabilities any liabilities for or related to inxxxxxdness of Seller to banks or any of its Affiliates under the Assumed Contracts other financial institutions with respect to the extent required to be paid or performed prior to Closingborrowed money;
(gd) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes any liabilities of Seller (under those leases, contracts, insurance policies, commitments, sales orders, purchase orders, governmental approvals, provider or any stockholder memberbilling numbers, Permits and Environmental Permits or Affiliate of Seller); (ii) Taxes relating portions thereof which are not assigned to Purchaser pursuant to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; ;
(e) any liability or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or obligation pursuant to any Law (includingdispute, claim, controversy, action, suit, proceeding, charge, hearing , investigation or settlement accruing or arising, prior to the Closing, including but not limited toto any liability or obligation of Seller or the Division Business arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time in respect of anything done, Treasury Regulations Section 1.1502-6 suffered, to be done or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing omitted on or prior to the Closing Date by Seller or by agreements entered into any of Seller's employees or transactions entered into on agents, including without limitation, any liability or obligation of Seller or the Division Business with respect to any malpractice claims, actions, proceedings or settlements or with respect to reimbursement from any third party payer including any governmental payer (including but not limited to those listed in the Disclosure Schedule) and any liability or obligation of Seller or the Division Business with respect to design or manufacturing defects in the Products;
(f) any liability with respect to employees, agents, independent contractors or similarly situated person accruing or arising prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect Date or pursuant to Employees Section 9.2, unless specifically enumerated as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500an Assumed Liability; and
(mg) All Liabilities accruingwithout limitation by the specific enumeration of the foregoing, arising out of or related any liabilities not expressly assumed by Purchaser pursuant to the ownership, possession, use, operation or condition provisions of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSection 2.2.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase and sale of assetsto the contrary, and that Buyer is not a legal successor of Seller and Purchaser is assuming only the Assumed Liabilities and is not assuming, and shall not be deemed to have assumed, any other Liabilities of the Seller (or any predecessor of Seller or 4 any prior owner of all or part of its Affiliates business and assets) of whatever nature (whether arising prior to, at the time of, or subsequent to Closing) and Seller shall be solely and exclusively liable for any nature whatsoeverand all such Liabilities, whether known including those relating to, arising out of or unknown, absolute in connection with the operation of the Business or contingentthe Purchased Assets (including the use and ownership thereof) at any time prior to the Closing Date, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliatesthose Liabilities set forth below (collectively, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:):
(a) any all Liabilities of Seller relating to or otherwise arising, whether before, on or after the Closing, out of, or in connection with, any of the Excluded Assets;
(b) any and all Liabilities of Seller for costs in respect of Contracts that are Non-Assigned Contracts;
(c) any and expenses incurred all Liabilities with respect to any environmental, health or safety matter, relating to, arising out of or in connection with (i) Seller’s operation of its businesses (other than the Business) or its leasing, ownership or operation of real property at any time, or (ii) the operation of the Business or the Purchased Assets on or prior to the Closing Date;
(d) all Liabilities of Seller in respect of Indebtedness, whether or not relating to the Business or the Purchased Assets, including without limitation that certain Loan Agreement by and between Seller and Ahn-Gook Pharmaceutical Company, Ltd. dated as of October 30, 2009;
(e) all warranty and return obligations, including, without limitation, all Liabilities and obligations to repair or replace, or to refund the sales price (or to be incurredany other related expenses) for services performed by its legal, financial, accounting inventory sold prior to the Closing Date;
(f) any and investment banking advisors all Liabilities for Taxes arising in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) any and all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date operation of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing the Business on or prior to the Closing Date Date;
(h) any and all Liabilities of Seller in respect of the WARN Act or by agreements entered into under any similar provision of any federal, state, provincial, regional, foreign or transactions entered into local Law that might arise or have arisen on or prior to the Closing Date;
(i) any and all Liabilities of Seller in respect of the Employees, Seller’s officers and its Affiliates with respect to Employees as provided in Exhibit Cdirectors, or the Seller Plans;
(j) All any and all Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation in respect of the Ethanol Plant or the Business prior to the Closing Dateany Actions;
(k) All Liabilities of Seller any costs and their respective Affiliates expenses related to Syngenta/ADM Actions;the Bankruptcy Case; and
(l) All all Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateset forth on Schedule 1.4(l).
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase Assumed Liabilities, Buyers shall not assume and sale of assetsunder no circumstances shall Buyers be obligated to pay or assume, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities none of the Seller assets of Buyers shall be or 4 become liable for or subject to any liability, indebtedness, commitment, or obligation of its Affiliates of any nature whatsoeverSellers or their Affiliates, or with respect to the Facilities, whether known or unknown, absolute fixed or contingent, and whether presently recorded or unrecorded, currently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliatesarising or otherwise (collectively, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The , including, without limitation, the following Excluded Liabilities includeLiabilities:
(a) any Liabilities debt, obligation, expense or liability that is not an Assumed Liability (including but not limited to accounts payable, accrued salaries and accrued liabilities);
(b) any liability or obligation arising out of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this AgreementAssets and/or ownership and operation of the Facilities prior to the Effective Time, including without limitation claims or potential claims for medical malpractice or general liability relating to acts, events or omissions asserted to have existed or occurred prior to the Effective Time;
(c) those claims and obligations (if any) specified in Schedule 1.4 hereto;
(d) all litigation, claims, actions, proceedings, liabilities and obligations relating to, in connection with or arising out of matters described or referred to (or required to be described or referred to) on Schedule 3.13;
(e) any liabilities or obligations associated with or arising out of any of the Excluded Assets;
(f) liabilities and obligations of Sellers or their Affiliates (with respect to the Facilities or Assets) in respect of periods prior to the Effective Time arising under the terms of the Medicare, Medicaid, CHAMPUS/TRICARE, BlueCross, or other third party payor programs, including, without limitation, in respect of third party payors pursuant to retrospective settlements (including, without limitation, pursuant to Medicare, Medicaid and CHAMPUS/TRICARE cost reports filed or to be filed by Sellers for periods prior to the Effective Time, RAC appeals, ACOs, CINs, CJR, and all liabilities and obligations for periods prior to the Effective Time related to all Medicaid payments and programs, including, but not limited to (i) settlements or adjustments to prior Medicaid payments resulting from the State’s audit or other recalculation of Medicaid payments for services rendered prior to the Effective Time, (ii) DSH, (iii) LIP, and (iv) DPP), and all appeals and appeal rights of Sellers relating to such settlements, any broker’s fees audit under the Medicare RAC program or any noncompliance with applicable law or contractual obligations related to the billing or collection of Seller’s broker;
(b) services, any Liabilities ACOs, CINs, CJR, and any liability arising pursuant to the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or any other third party payor programs as a result of the Seller relating to its performance under this Agreement and the Transaction Documents and consummation of any of the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in under this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out federal, state or local Tax liabilities or obligations of Sellers or relating to or associated with the Excluded Assets;
(h) all Liabilities with their Affiliates in respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating periods prior to the Business, the Assets Effective Time or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of resulting from the consummation of the transactions contemplated hereby which constitute herein including, without limitation, (1) any income tax, any franchise tax, any tax recapture, any sales and/or use tax, and any FICA, FUTA, workers’ compensation, and (2) any and all other taxes or amounts due and payable as a result of the exercise by the employees at the Facilities that are hired by Xxxxxx following Closing of such employees’ right to vacation, sick leave, and holiday benefits accrued while in the employ of Sellers (provided, however, that this clause (g)(2) shall not apply to any and all such taxes payable with respect to any employee benefits constituting Assumed Liabilities);
(h) liability for any and all claims by or on behalf of employees, independent contractors, directors, officers, managers or other persons of Sellers, their Affiliates (with respect to the Facilities or Assets) or the Facilities relating to periods prior to the Effective Time including, without limitation, liability for any compensation-related payments, pension, profit sharing, deferred compensation, equity or equity-related compensation, incentive compensation, fringe benefit, tuition reimbursement, severance, termination pay, change in control or retention payments, bonuses or any other employee benefit plan of whatever kind or nature or any employee health and welfare benefit plans, liability for any unemployment compensation claim, or workers’ compensation claim, and any liabilities or obligations to former employees of Sellers, their Affiliates (with respect to the Facilities) or the Facilities under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), (provided, however, that this clause (h) shall not apply to any and all employee accrued vacation and holiday benefits constituting Assumed Liabilities under Section 1.3(c) hereof);
(i) any obligation or liability accruing, arising out of, or relating to any federal, state or local investigations of, or claims or actions against, Sellers or any of their Affiliates (with respect to the Facilities or Assets) or any of their employees, medical staff, agents, vendors or representatives with respect to acts, events, circumstances or omissions prior to the Effective Time;
(j) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of Sellers, their Affiliates or, to the extent related to their services to Sellers or their Affiliates or to the Facilities, their directors, officers, employees and are payable byagents, claimed to violate or not comply with any constitutional provision, statute, ordinance or other law, rule, regulation or order, consent decree, continuing disclosure agreement, license, permit or other agreement of or with any Government Entity;
(k) liabilities or obligations arising out of any breach, non-compliance or default by Sellers or their Affiliates under any Contract prior to the Effective Time;
(l) liabilities or obligations arising (whether as a result of any breach, non-compliance or default by Sellers or their Affiliates, or otherwise) at any time under any contract or commitment that is not expressly assumed by Buyers in this Agreement;
(m) any debt, obligation, expense, or liability of Sellers arising out of or incurred as a result of any transaction, act or omission of Sellers or their Affiliates (with respect to the Facilities) occurring after the Effective Time;
(n) any liability or obligation of Sellers and their Affiliates (with respect to the Facilities or Assets) relating to any violation or non-compliance with federal, state, foreign or other laws, rules, regulations, orders or decrees regulating fraud, including but not limited to those described on any disclosure schedule (including, for example, Schedule 3.8, Schedule 3.10, Schedule 3.14, Schedule 3.16) and the federal Anti-Kickback Law (42 U.S.C. § 1320(a)-7(b) et seq.) (the “Anti-Kickback Law”), the SellerEthics in Patient Referrals Act (42 U.S.C. § 1395nn et seq.) (the “Xxxxx Law”), whether such Taxes arise by Law or as agreed to by and the parties hereto under Section 8.4(aFalse Claims Act (31 U.S.C. § 3729 et seq.) or other provisions of this Agreement(the “False Claims Act”); or and
(ivo) all Taxes attributable liabilities and obligations relating to any Tax period (oral agreements, oral contracts or portion thereof) ending on or before the Closing Date of oral understandings with any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (referral sources including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federalphysicians, stateunless reduced to writing, local or foreign Lawidentified on Schedule 1.1(g) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller hereto, and its Affiliates with respect to Employees expressly assumed as provided in Exhibit C;
(j) All Liabilities part of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateContracts.
Appears in 1 contract
Samples: Asset Purchase Agreement (Community Health Systems Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding anything in this Agreement involve a purchase to the contrary, Purchaser No. 1 and sale of assetsPurchaser No. 2 shall not assume or become responsible for any claim, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller liability or 4 any of its Affiliates obligation of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwiseotherwise (a "Liability") relating of Seller except Assumed Liabilities No. 1 and Assumed Liabilities No. 2 that are specifically assumed by such party. Without limiting the generality of the foregoing, the following are included among the Liabilities of Seller which Purchaser No. 1 and Purchase No. 2 shall not assume or become responsible for (unless specifically included as Assumed Liabilities No. 1 or Assumed Liabilities No. 2):
(a) all Liabilities for any Taxes whether deferred or which have accrued or may accrue or become due and payable by Seller either prior to, on or after the Closing Date, including, without limitation, all Taxes and fees of a similar nature arising from the sale and transfer of Purchased Assets No. 1 and Purchased Assets No. 2 to Purchaser No. 1 and Purchaser No. 2, respectively;
(b) all Liabilities and obligations to directors, officers, employees or agents of Seller, including, without limitation, all Liabilities and obligations for wages, salary, bonuses, commissions, vacation (except to the extent Purchaser No. 1 and/or Purchaser No. 2, as applicable, agrees to assume such item as set forth in Section 3.1 and/or 3.2, respectively) or severance pay, profit sharing or pension benefits, and all Liabilities and obligations arising under any bonus, commission, salary or compensation plans or arrangements, whether accruing prior to, on or after the Closing Date;
(c) all Liabilities and obligations with respect to unemployment compensation claims and workmen's compensation claims and claims for race, age and sex discrimination or sexual harassment or for unfair labor practice based on or arising out of the ownership from occurrences, circumstances or operation of the Purchased Assets events, or the conduct of the Business exposure to conditions, existing or occurring prior to the ClosingClosing Date and for which any claim may be asserted by any of Sellers employees, prior to, on or after the Closing Date;
(d) all Liabilities of Seller to third parties for personal injury or damage to property based on or arising from occurrences, circumstances or events, or exposure to conditions, existing or occurring prior to the Closing Date and for which any claim may be asserted by any third party prior to, on or after the Closing Date;
(e) all Liabilities and obligations of Seller arising under or by virtue of federal or state environmental laws based on or arising from occurrences, circumstances or events, or exposure to conditions, existing or occurring prior to the Closing Date and for which any claim may be asserted prior to, on or after the Closing Date;
(f) all Liabilities of Seller including any costs of attorneys' fees incurred in connection therewith, for litigation, claims, demands or any of its Affiliates under the Assumed Contracts governmental proceedings arising from occurrences, circumstances or events, or exposure to conditions occurring or existing prior to the extent required to be paid or performed prior to ClosingClosing Date;
(g) all Liabilities arising out based on any theory of liability or relating product warranty with respect to any product manufactured or associated with sold prior to the Excluded AssetsClosing Date and for which any claim may be asserted by any third party, prior to, on or after the Closing Date;
(h) all Liabilities attorneys' fees, accountants or auditors' fees, and other costs and expenses incurred by Seller and/or Shareholders in connection with respect to (i) Taxes the negotiation, preparation and performance of Seller (this Agreement or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Datehereby;
(i) all Liabilities of Seller and its Affiliates in connection with respect to Employees as provided in Exhibit Cthe Excluded Assets;
(j) All any Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire shares of its capital stock of any class; and
(k) any Liabilities of Seller incurred incident to any indemnification for breach of any representations, warranties, covenants, or other agreements made by Seller under any of the Seller asset purchase, stock, reorganization, or other legal transaction(s) set forth in Disclosure Schedule 2.2(k).
(l) all other debts, Liabilities, obligations, contracts and its Affiliates related commitments (whether direct or indirect, known or unknown, contingent or fixed, liquidated or unliquidated, and whether now or hereinafter arising) arising out of or relating to the Green Shift License Agreement ownership, operation or use of any of Purchased Assets No. 1 and/or Purchased Assets No. 2 on or prior to the extent such Liabilities arose from Closing Date or the operation conduct of the Ethanol Plant or the Business No. 1 of Seller and/or Business No. 2 of Seller prior to the Closing Date;
(k) All , except only for the liabilities and obligations to be assumed or paid, performed or discharged by Purchaser No. 1 and/or Purchaser No. 2 constituting Assumed Liabilities No. 1 or Assumed Liabilities No. 2. Seller shall pay all liabilities not being assumed hereunder by Purchaser No. 1 or Purchaser No. 2 within the customary time for payment of such liabilities. It is the intent of the parties that upon Closing, all employees of Seller will be terminated by such parties and their respective Affiliates related Purchaser No. 1 or Purchaser No. 2 will extend offers of employment to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datesuch individuals.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pomeroy Computer Resources Inc)
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by this Agreement involve a purchase and sale of assetsforegoing, and that notwithstanding anything to the contrary contained in this Agreement, the Buyer is shall not a legal successor of Seller and is assuming only assume any Liabilities other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever(collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Without limiting the generality of the foregoing, the Assumed Liabilities shall not include, and the Buyer shall not be required to assume or to otherwise perform or discharge, the following Excluded Liabilities includewhether arising prior to, at or after the Closing Date:
(ai) any Liabilities Liability of the Guarantor or any Person other than the Seller;
(ii) any Liability of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to the execution, delivery or associated with performance of any of the Excluded AssetsTransaction Agreements;
(hiii) all any Liability of the Seller for any fees, costs or expenses of the type referred to in Section 8.2;
(iv) except for Assumed Liabilities with respect under the Assumed Contracts, any Liability arising from or relating to (i) Taxes of any action taken by the Seller (or its agents, or any stockholder memberfailure on the part of the Seller or its agents to take any action, at any time, whether prior to, at or Affiliate of Seller); after the Closing Date;
(iiv) Taxes except for Assumed Liabilities under the Assumed Contracts, any Liability arising from or relating to the Business, the Assets Business or the Assumed Liabilities any services performed for any Tax period (Person by or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out behalf of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into Seller on or prior to the Closing Date;
(ivi) except for Assumed Liabilities under the Assumed Contracts, any Liability as successor-in-interest to the Seller or under any rule or principle of successor liability, continuity of enterprise, de facto merger, mere continuation or similar rule or principle;
(vii) any Liability under the Sunnyvale Lease (including all Liabilities associated payments, obligations and taxes related to the facility subject to the Sunnyvale Lease), and any Liability relating to or in connection with the Sunnyvale Lease, other than any Liability arising from or relating to the performance and obligations of Buyer under the Sunnyvale Sublease;
(viii) any Liability of the Seller and its Affiliates related to any Proceeding against the Seller;
(ix) any Tax or Liability of the Seller for the payment of any Tax;
(x) any Liability of the Seller to or on account of any Employee or former employee of the Seller under or with respect to Employees as provided in Exhibit Cemployment, including any Liability relating to any Benefit Plan, or wages or commissions, accrued vacation days or sick days or other paid time off, and any Liability for severance payments or other obligations to or on account of Employees;
(jxi) All Liabilities any Liability of the Seller and its Affiliates related to the Green Shift License Agreement Guarantor or any other Related Party, Representative or Affiliate of the Seller, including any Intercompany Transactions and any payables due to the Guarantor, and including the Liabilities listed on Schedule 1.3(b)(xi);
(xii) any Liability of the Seller under any Seller Contract, if (A) the Seller shall not have obtained, prior to the Closing, any Consent required to be obtained from any Person with respect to the assignment or delegation to the Buyer of any rights or obligations under such Seller Contract and (B) such Seller Contract would have been an Assumed Contract but for the Seller’s failure to obtain such Consent;
(xiii) any Liability of the Seller under any Assumed Contract to the extent such Liabilities arose Liability (A) was required to be performed by the Seller before the Closing Date in accordance with the terms of any Assumed Contracts, unless there exist accounts payable collected by the Buyer, or (B) arises from or relates to any Breach by the Seller of any provision of any Assumed Contracts;
(xiv) any bank or other debt, loans or guarantee obligations of the Seller including, without limitation, any capitalized leases, loans from the operation Guarantor, bank lines of credit, equipment installment notes or other notes payable (other than those Assumed Liabilities under any Assumed Contracts listed in Schedule 1.1(e));
(xv) any lease obligations, including vehicle, office and equipment leases (other than those Assumed Liabilities under any Assumed Contracts listed in Schedule 1.1(e));
(xvi) any Liability of the Ethanol Plant Seller that arises or exists by virtue of any Breach of (A) any representation or warranty made by the Seller or the Business Guarantor in any of the Transaction Agreements, or (B) any covenant or obligation of the Seller or the Guarantor contained in any of the Transaction Agreements;
(xvii) any Liability of the Seller arising out of or relating to the Seller Intellectual Property and the Intellectual Property Rights thereto, other than obligations of the Seller arising after the Closing (A) under inbound and outbound licenses for Intellectual Property that are Assumed Contracts listed in Schedule 1.1(e) or (B) described in Section 1.3(a)(ii);
(xviii) any Payable of the Seller that remains unpaid as of the Closing, except those described in Section 1.3(a)(ii);
(xix) any indemnity obligation of the Seller to any Person (other than indemnity obligations that are Assumed Liabilities under any Assumed Contracts listed in Schedule 1.1(e));
(xx) any Liability of the Seller or any Related Party that directly or indirectly arises from or relates to the presence of any Hazardous Material at any site owned, leased, occupied or controlled by the Seller on or at any time prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with or the matters described in that certain Consent Agreement and Final Ordergeneration, Green Plains Inc.manufacture, respondentproduction, Environmental Protection Agencytransportation, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possessionimportation, use, operation treatment, refinement, processing, handling, storage, discharge, Environmental Release or condition disposal of any Hazardous Material (whether lawfully or unlawfully) by or on behalf of the Purchased Assets, the Ethanol Plant or the Business before the Seller prior to Closing, including Liabilities for personal injury or death or damage to property of ; or
(xxi) any Third Party attributable to or arising out Liability of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold Seller that is not referred to Third Parties prior to the Closing Datespecifically in Section 1.3(a).
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 2.03 or any other provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any kind or nature whatsoever, whether known or unknown, absolute or contingentwhatsoever other than the Assumed Liabilities (the "Excluded Liabilities"). Seller shall, and whether presently existing or hereafter arisingshall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. All such other liabilities and obligations shall be retained by and remain liabilities and obligations Without limiting the generality of the Seller and/or its Affiliatesforegoing, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(cb) any Liabilities of the Seller Liability for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax period (or portion thereof) ending on or before the Closing DatePeriod; (iiiii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and or that are payable by, the Seller, whether such Taxes arise by Law or as agreed responsibility of Seller pursuant to by the parties hereto under Section 8.4(a) or other provisions of this Agreement6.14; or (iviii) all other Taxes attributable to any Tax period of Seller (or portion thereofany stockholder or Affiliate of Seller) ending on or before the Closing Date of any Person imposed on kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a Liability of Buyer as a under any common law doctrine of de facto merger or transferee or successor, successor liability or otherwise by operation of contract or pursuant Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Law (includingLiabilities in respect of any pending or threatened Action arising out of, but not limited to, Treasury Regulations Section 1.1502-6 relating to or comparable federal, state, local otherwise in respect of the operation of the Business or foreign Law) with respect to Liabilities or relationships existing on or prior the Purchased Assets to the Closing Date or by agreements entered into or transactions entered into extent such Action relates to such operation on or prior to the Closing Date;
(ie) all any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller;
(f) any Liabilities of Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(g) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers' compensation, severance, retention, termination or other payments other than those set forth on Section 2.03(d) of the Disclosure Schedules;
(h) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller;
(i) any trade accounts payable of Seller (i) that are not set forth on Schedule Section 2.03(a) to the Disclosure Schedules or are incurred by Seller after the date set forth on Schedule Section 2.03(a) to the Disclosure Schedules and its prior to the Closing in the ordinary course of the operation of the Business; (ii) which constitute intercompany payables owing to Affiliates with respect of Seller; (iii) which constitute debt, loans or credit facilities to Employees as provided in Exhibit Cfinancial institutions or (iv) any trade accounts payable that are incurred by the Seller after the Closing;
(j) All any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business' customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and its Affiliates related effectively assigned to Buyer pursuant to this Agreement;
(k) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Seller Indemnitees;
(l) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the Green Shift License Agreement representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arose from the operation arise out of the Ethanol Plant or the Business relate to a breach by Seller of such Contracts prior to the Closing DateClosing;
(km) All any Liabilities associated with debt, loans or credit facilities of Seller and their respective Affiliates related and/or the Business owing to Syngenta/ADM Actionsfinancial institutions;
(ln) All any Liabilities associated arising out of, in respect of or in connection with the matters described in that certain Consent Agreement and Final failure by Seller or any of its Affiliates to comply with any Law or Governmental Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(mo) All those Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition Seller set forth on Section 2.04(o)Section 2.03(e) of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateDisclosure Schedules.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Neither the transactions contemplated by this Agreement involve Buyer nor any of the Buyer’s Affiliates shall be a purchase and sale of assetssuccessor with respect to, and that Buyer is shall not a legal successor assume or agree to pay, perform or otherwise discharge, nor shall they be or become responsible hereunder for, any of Seller and is assuming only the Assumed Liabilities and not any other following Liabilities of the Seller Company or 4 any of its Affiliates of any nature whatsoeverSubsidiaries (including the Sold Companies and the Sold Subsidiaries) (such Liabilities, whether known or unknownother than those constituting Assumed Liabilities, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:):
(a) all Liabilities to the extent resulting from, arising out of, or relating to the Excluded Businesses or any Excluded Assets (it being understood that this Section 2.5(a) shall not include Liabilities incurred by the Buyer or its Affiliates and arising out of transactions between the Seller for costs Buyer or its Affiliates, on the one hand, and expenses incurred (the Company or to be incurred) for services performed by any of its legalSubsidiaries, financialon the other, accounting and investment banking advisors in connection with following the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing Date);
(b) any all Liabilities of the Company or any of its Subsidiaries or any member of any consolidated, affiliated, combined or unitary group of which any Asset Seller is or has been a member (other than the Sold Companies or Sold Subsidiaries) for Taxes attributable to all Pre-Closing Tax Periods and Pre-Closing Straddle Periods (such Taxes relating to its performance under this Agreement and such Straddle Period to be apportioned in accordance with the Transaction Documents and principles of Section 10.4(c)), including any such Taxes which are not due or assessed until after the transactions contemplated hereby and therebyClosing Date;
(c) any all Liabilities of the Seller Asset Sellers for Intercompany AccountsTaxes to the extent resulting from, arising out of, or relating to the operation of the Business or the ownership of the Transferred Assets or the Assumed Liabilities to the extent attributable to a Pre-Closing Tax Period or Pre-Closing Straddle Period (such Taxes relating to such Straddle Period to be apportioned in accordance with the principles of Section 10.4(c)), including any such Taxes which are not due or assessed until after the Closing Date;
(d) any Liabilities of all Transfer Taxes for which the Seller for asset retirement obligations related Company is responsible pursuant to railcarsSection 10.4(d);
(e) except as expressly set forth in this Agreementall Liabilities to the extent resulting from, all Indebtednessarising out of, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out any of the ownership employees (other than Transferred Employees or operation Former Employees) and other individual service providers of the Purchased Assets Company or the conduct any of the Business prior to the Closingits Subsidiaries;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required resulting from, arising out of, or relating to be paid (i) Benefit Plans (other than Assumed Plans, the Multiemployer Plans or performed prior such Liabilities specifically assumed by the Buyer under Article VI), and (ii) Transferred Employees or Former Employees to Closingthe extent specifically retained by the Sellers under Article VI;
(g) all Liabilities arising out of for which the Sellers are expressly made responsible pursuant to this Agreement or relating to or associated with the Excluded Assetsany other Transaction Document;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing DateTransaction Expenses;
(i) all Liabilities Indebtedness for borrowed money of Seller and its Affiliates with respect the Asset Sellers to Employees as provided the extent not included in Exhibit CClosing Indebtedness;
(j) All all Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant resulting from, arising out of, or the Business prior relating to the Closing DateCarve-Out Accounts;
(k) All all Environmental Liabilities to the extent resulting from, arising out of, or relating to any site other than the Assigned Leased Real Properties, where the Company and/or any of Seller and their respective Affiliates related its Subsidiaries have, as of the Closing Date, been identified as a potentially responsible party or otherwise alleged to Syngenta/ADM Actions;be liable with respect to any environmental conditions, including the sixty-one (61) sites disclosed in the Company’s Form 10-K filed for the fiscal year ended July 1, 2016; and
(l) All all Liabilities associated with to the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruingextent resulting from, arising out of of, or related relating to the ownershipHonduras Wind-down (including with respect to Taxes required to be paid by or with respect to Xxxxxx Communications S.A. de C.V.), possessionwhether arising prior to, use, operation on or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to after the Closing Date.
Appears in 1 contract
Samples: Sale Agreement (Harris Corp /De/)
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by contrary set forth in this Agreement involve a purchase and sale of assetsAgreement, the Buyer shall have no obligation to assume from the Seller pursuant to this Agreement, and that the Seller shall have no right or obligation to convey, transfer or assign to the Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not pursuant to this Agreement, any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverother than the Assumed Liabilities (collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Without limiting the generality of the foregoing, the Excluded Liabilities includeshall expressly include (and, therefore, the Assumed Liabilities shall exclude) the following Liabilities relating to either the Subject Business or the Seller:
(ai) other than any such Liabilities that are expressly listed or described in Section 2.2(a) hereof as Assumed Liabilities, (A) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets Transferred Employees or the Assumed Liabilities for any Tax period (or portion thereof) ending on or employment thereof incurred before the Closing Date; (iiiincluding Liabilities for workers compensation claims, disability and occupational diseases), in each case without regard to whether such Liabilities or the bases therefor are known or otherwise manifest before the Closing, (B) Taxes that arise any and all Liabilities arising out of the consummation of the transactions contemplated hereby which constitute obligations ofany stock option, equity incentive or cash bonus plan, (C) any and all Liabilities arising under any severance, retention or employment agreements or plans, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a(D) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) and all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownershipSeller Benefit Plans;
(ii) other than any such Liabilities that are expressly listed or described in Section 2.2(a) hereof as Assumed Liabilities, possessionsubject to the terms and conditions of Article 7 hereof, useany and all Liabilities for Taxes for any taxable periods, operation or condition of the Purchased Assetsportions thereof, the Ethanol Plant ending on or the Business before the Closing, including other than with respect to Liabilities for personal injury or death or damage to property of Transfer Taxes (which shall be as provided in Section 2.6) and Straddle Period Taxes (which shall be as provided in Section 7.2);
(iii) any Third Party attributable to or and all Liabilities arising out of Products manufactured or sold by the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties Seller prior to the Closing DateDate in excess of any reserves therefore on the Reference Balance Sheet;
(iv) any and all Liabilities arising out of or related to any violation of Law (including any Environmental Law) to the extent occurring before the Closing, whether or not the Seller participated in the act or omission giving rise to such violation;
(v) any and all Liabilities arising out of or related to (A) the failure of any report, schedule, form or registration statement (including all exhibits, schedules and amendments thereto) filed by the Seller with the SEC to comply with the requirements of the Securities Act and the Exchange Act, as the case may be, and (B) the fact that any such reports, schedules, forms or registration statements contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(vi) pre-Closing Liabilities relating to the Santa Cxxxx Lease or the UK Lease;
(vii) any severance payments made to employees terminated prior to Closing and not hired by Buyer; and
(viii) the other Liabilities set forth on Schedule 2.2(b) hereto.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is Purchaser shall not a legal successor of Seller and is assuming only the Assumed Liabilities and not assume any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under other than the Assumed Contracts to Liabilities or as provided in the extent required to be paid or performed prior to Closing;Ancillary Agreements, and the Excluded Liabilities shall remain the sole obligation and responsibility of Seller. Without limiting the generality of the foregoing, Excluded Liabilities shall include each of the following:
(ga) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(hb) all Liabilities with respect to (i) Taxes under, arising out of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Purchased Assets or (other than the Assumed Liabilities for any Tax period (or portion thereofContracts) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date Initial Closing, or by agreements entered into the use, ownership, operation, or transactions entered into lease of the Purchased Assets other than the Assumed Contracts on or prior to the Closing DateInitial Closing;
(ic) all Liabilities arising as a result of activities conducted on or prior to the Initial Closing, or to be performed on or prior to the Initial Closing, under the Assumed Contracts, other than as specified in Section 2.10;
(d) all Liabilities arising as a result of activities conducted after the Initial Closing, or to be performed after the Initial Closing, under any Assumed Contract when it remains a Deferred Asset, other than as specified in Section 2.2(c);
(e) all Liabilities arising under the Shared Contracts, other than Shared Contract Liabilities allocated to Purchaser under Section 2.11 or and Replacement Contract or as provided in any Ancillary Agreement;
(f) except to the extent of Purchaser's Liabilities under the Sublease Agreement, all Liabilities arising as a result of activities conducted on or prior to the Lease Assignment Closing, or to be performed on or prior to the Lease Assignment Closing, under the Facility Lease, other than as specified in Section 2.10 or the Sublease Agreement;
(g) all Liabilities of Seller and its Affiliates with respect for Taxes (including any Taxes allocated to Employees as provided in Exhibit C;
(jSeller pursuant to Section 2.8(b) All but excluding Taxes allocated to Purchaser under Section 2.8(b) and Purchaser's share of Transfer Taxes pursuant to Section 2.8(a)), and all Liabilities of the Seller and its Affiliates related for Taxes relating to the Green Shift License Agreement Purchased Assets, Facility or Transferred Workers that are attributable to taxable periods or portions thereof ending on or before the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Initial Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(mh) All all Liabilities accruingand obligations (including all Litigation relating to such Liabilities or obligations) relating to or stemming from the actual or alleged infringement, arising out of misappropriation, dilution, or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property other violation of any Third Party attributable to or Person's Intellectual Property arising out of the ownership or operation use of the Purchased Assets, the Ethanol Plant Assets or the Business before Facility, attributable, in each case, to the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties period prior to the Initial Closing Date(regardless of when raised).
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor assuming and Seller Parent or one or more of Seller and is assuming only its Subsidiaries shall pay, perform or otherwise satisfy, all Liabilities other than the Assumed Liabilities and not any other Liabilities of Liabilities, including the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities includefollowing:
(a) any Liabilities (i) all Taxes arising from or with respect to the Transferred Assets or the operation of the Seller for costs and expenses Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing Date (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth otherwise provided in this Agreement), all Indebtedness, Contracts and Liabilities of including any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out such Taxes imposed on the Buyer as a result of the ownership Buyer being a transferee or operation of successor with respect to the Purchased Assets Business or the conduct of the Business prior to the Closing;
Transferred Assets, (fii) all Liabilities of any Liability for Taxes imposed upon Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or for which Seller or any stockholder memberof its Affiliates may otherwise be liable), or Affiliate of Seller); (ii) without regard to whether such Taxes relating relate to the Business, the Assets or the Assumed Liabilities for any Tax period periods (or portion portions thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or thereafter (including any Taxes of any Person imposed upon Seller or any of its Affiliates under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Law), as a transferee or successor by agreements entered into contract or transactions otherwise), (iii) any Liability for Taxes of another Person as a result of a Contract or other agreement entered into on or prior to the Closing Date (other than as a result of any Contract that is a Transferred Asset to the extent Taxes under such Contract relate to periods (or portions thereof) beginning after the Closing Date), and (iv) any Taxes which are the responsibility of the Seller pursuant to Article VI;
(b) except as set forth in Section 5.6, all Liabilities (i) arising out of or relating to the employment or termination of employment of or service by any current or former employee, consultant, contractor or leased employee of the Seller or Seller Parent on or prior to the Closing Date or (ii) arising in respect of or relating to Business Employees, Business Benefit Plans, or other employee benefit plans or workers compensation arrangements to which Seller has any obligation or Liability;
(c) all Indebtedness of the Seller, Seller Parent and any of their respective Subsidiaries and Affiliates;
(d) all Liabilities in respect of products manufactured, marketed, distributed or sold by the Business, in each case prior to the Closing;
(e) Liabilities to the extent arising out of Excluded Assets, including, in the case of real property owned, leased or operated at any time by the Seller or any of its Affiliates in connection with the Business (other than the Owned Real Property or the Cxxxxxxx Facilities);
(f) Liabilities (including for infringement of any Intellectual Property of any other Person) to the extent arising out of any manufacturing or design defect in, or any warranty or product liability claim related to, or otherwise with respect to any unit of product of the Business manufactured or sold by the Seller prior to the Closing Date;
(g) Excluded Environmental Liabilities;
(h) Liabilities for breach or violation by the Seller prior to the Closing to be such a breach or violation of any (i) Transferred Contract (ii) Law (other than, for the avoidance of doubt, any item set forth on Schedule 3.9) or (iii) Permit (but, for clarity, excluding in each case any Liabilities other than the Straddle Environmental Liabilities to the extent arising from a continuation of any such breach or violation by the Buyer on or after the Closing);
(i) all Liabilities of related to any Action pending or threatened in writing against Seller and its Affiliates with respect or Seller Parent prior to Employees the Closing Date, except as provided in Exhibit Cset forth on Schedule 2.3(h);
(j) All Liabilities of subject to Section 2.5, attributable to the Seller and its Affiliates related to the Green Shift License Agreement or Seller Parent’s proportionate interest in respect of any Shared Contract to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior relating to the Closing DateOther Businesses;
(k) All all Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;listed on Schedule 2.4(k); and
(l) All all Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related relating to the ownershipOther Businesses (including, possessionsubject to Section 2.5, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property in respect of any Third Party attributable Shared Contract to the extent relating to the Other Businesses or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties that was Known prior to the Closing DateClosing) (collectively with items (a) - (d) above, the “Excluded Liabilities”).
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding any disclosures made to the transactions contemplated by this Agreement involve a purchase and sale Buyer or its agents in the conduct of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities their due diligence investigations of the Seller or 4 anything herein to the contrary, the Buyer shall not assume any of its Affiliates the liabilities or obligations of the Seller other than the Assumed Liabilities, and the Buyer shall not be or become liable for any nature whatsoeverclaims, whether demands, liabilities or obligations of the Seller other than the Assumed Liabilities. Without limiting the foregoing, the Buyer shall not assume or agree to perform, pay or discharge, and the Seller shall remain unconditionally liable for and shall pay and satisfy in due course, all obligations, liabilities and commitments, fixed or contingent, known or unknown, absolute accrued or contingentunaccrued, and whether presently existing direct or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations indirect, cxxxxx or inchoate, perfected or unperfected, liquidated or unliquidated, of the Seller and/or its Affiliates, as applicable other than the Assumed Liabilities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include, including but not limited to the following:
(a) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreementnegotiation, includingpreparation, without limitation, any broker’s fees investigation and performance of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(cb) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to Liability (i) for Taxes of Seller (or any stockholder member, equity holder or Affiliate of Sellerany of the foregoing); , (ii) for Taxes relating to the Business, the Acquired Assets or the Assumed Liabilities for any Tax period (pre-Closing Taxes, or portion thereof) ending on or before the Closing Date; (iii) for Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and or that are payable by, the responsibility of the Seller;
(c) any Liabilities relating to or arising out of the Excluded Assets, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer well as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Sydson Resources and Sydson Energy;
(d) any Liabilities in respect of any pending or relationships existing on threatened Action arising out of, relating to or prior otherwise in respect of the operation of the Business or the Acquired Assets to the Closing Date or by agreements entered into or transactions entered into extent such Action relates to such operation on or prior to the Closing Date;
(ie) all any Liability based on any claim which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller in connection with any of the services provided by Seller or the Business;
(f) any Liabilities of Seller arising under or in connection with any benefit plan providing benefits to any present or former employee of Seller pre-Closing;
(g) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments pre-Closing;
(h) any pre-Closing trade accounts payable of Seller;
(i) any Liabilities of Seller or the Business relating or arising from unfulfilled commitments, purchase orders, customer orders or work orders entered into, issued by or otherwise pertaining to Seller or the Business at any time prior to the Closing (other than leases that have been negotiated but not executed and its Affiliates with respect relate to Employees as provided in Exhibit Cthe Acquired Assets);
(j) All any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same);
(k) any Liabilities not arising under the Seller Purchased Assets (i) which are not validly and its Affiliates related effectively assigned to (and expressly assumed by) Buyer pursuant to this Agreement, (ii) which do not conform to the Green Shift License Agreement representations and warranties with respect thereto contained in this Agreement, or (iii) to the extent such Liabilities arose from arise out of or relate to a breach by the operation Seller of the Ethanol Plant a Contract or the Business other of its obligations prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM ActionsClosing;
(l) All any Liabilities associated with debt, loans or credit facilities of the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06Seller and/or the Business owed or owing to any Person as to any period pre-2021-0500Closing; and
(m) All any Liabilities accruing, arising out of, in respect of or related to in connection with the ownership, possession, use, operation or condition failure by any of the Purchased Assets, the Ethanol Plant Seller or the Business before the Closing, including Liabilities for personal injury any of its Affiliates to comply with any Law or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateGovernmental Order.
Appears in 1 contract
Samples: Asset Purchase Agreement (Texas South Energy, Inc.)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsBuyer shall not assume or be obligated to pay, and that Buyer is not a legal successor of Seller and is assuming only perform, or otherwise discharge any liabilities or obligations other than the Assumed Liabilities and not any other Liabilities of the Seller (whether accrued, absolute, fixed or 4 any of its Affiliates of any nature whatsoeverunfixed, whether known or unknown, absolute asserted or unasserted, contingent, and whether presently existing by guaranty, surety or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable assumption or otherwise) (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities includeinclude liabilities and obligations relating to the following matters:
(a) any Liabilities and all debt of Seller and all related liabilities or obligations;
(b) any liability or obligation in respect of Income Taxes, franchise Taxes or other Taxes based on income, revenue or gross receipts, all liabilities for or relating to other Taxes to the extent the other Taxes arise from or relate to any Pre-Closing Tax Period, and Taxes and other liabilities or obligations arising from or related to the Installment Sale Arrangement;
(c) any payables and other liabilities or obligations of the Seller for Parties to any of their Affiliates;
(d) any costs and expenses payable to third parties incurred by Seller incident to its negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein;
(e) any liabilities or obligations to be incurredthe extent they relate to any Excluded Assets;
(f) for services performed by its legalany Excluded Environmental Matters;
(g) any broker’s, financialfinder’s, accounting and investment banking advisors banker’s or similar fees or commissions in connection with the transactions contemplated by this Agreement, including, without limitation, Agreement and based on agreements or arrangements made by or on behalf of any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;Parties; and
(ch) any Liabilities of the Seller for Intercompany Accounts;
(d) liabilities or obligations under any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character Employee Benefit Plan or description (whether known compensation arrangement or unknown, accrued, absolute, contingent or otherwise) otherwise relating to or arising out of the ownership or operation employment of any individual by Seller. Notwithstanding anything to the contrary in Section 2.3, none of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Excluded Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to specifically described above shall be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions purposes of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated Except for those liabilities expressly assumed -------------------- by this Agreement involve a purchase Buyer pursuant to Section 2.3, Buyer shall not assume and sale of assetsshall not be liable for, and that Buyer is not a legal successor Seller and its direct or indirect subsidiaries shall retain and remain solely liable for and obligated to discharge, all of the debts, contracts, agreements, commitments, obligations and other liabilities of any nature whatsoever of Seller and is assuming only the Assumed Liabilities its direct and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverindirect subsidiaries, whether known or unknown, absolute accrued or not accrued, fixed or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of including without limitation, the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities includefollowing:
(a) any Liabilities of the Seller Any liability for costs and expenses incurred (or to be incurred) for services performed breaches by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid respective direct or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing indirect subsidiaries on or prior to the Closing Date of any Assumed Contract or by agreements entered into any liability for payments or transactions entered into amounts due under any Assumed Contract or any other instrument, contract or purchase order on or prior to the Closing Date;
(b) Obligations or liabilities under any Assumed Contract for which a Required Consent has not been obtained as of the Closing;
(c) Any liability or obligation for or in respect of any of the Excluded Assets, including, without limitation, any Contract not included in the Assumed Contracts and any costs associated therewith;
(d) Subject to Section 6.16 hereof, any liability or obligation for Taxes attributable to or imposed upon Seller or any of its direct or indirect subsidiaries, or attributable to or imposed upon the Purchased Assets for any period (or portion thereof) through the Closing Date, including, without limitation, any Taxes attributable to or arising from the transactions contemplated by this Agreement;
(e) Any liability or obligation for or in respect of any loan, other indebtedness for money borrowed, or account payable of Seller or any of its direct or indirect subsidiaries, including, without limitation, the Promissory Note and any liabilities owed to Affiliates of Seller;
(f) Any liability or obligation arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time, to the extent relating to any action or omission on or prior to the Closing Date by or on behalf of Seller or any of its direct or indirect subsidiaries, including, without limitation, any liability for infringement of intellectual property rights, breach of product warranty, injury or death caused by products, or violations of federal or state securities or other laws;
(g) Any liability or obligation for making payments of any kind (including as a result of the sale of Purchased Assets or as a result of the termination of employment by Seller of employees, or other claims arising out of the terms and conditions of employment with Seller, or for vacation or severance pay or otherwise) to employees of Seller or in respect of payroll taxes for employees of Seller;
(h) Any liability of Seller incurred in connection with the making or performance of this Agreement and the transactions contemplated hereby;
(i) all Liabilities Any liability of Seller and its Affiliates arising out of the violation of or failure to comply with respect any Environmental Regulations (as hereinafter defined) by Seller prior to Employees as provided in Exhibit C;the Closing Date applicable to any aspect of the Business; and
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant Any costs or the Business prior to the Closing Date;
(k) All Liabilities expenses of Seller incurred in connection with shutting down, deinstalling and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateremoving equipment not purchased by Buyer.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by contrary contained in this Agreement involve a purchase and sale regardless of assetswhether such liability is disclosed herein or on any schedule hereto, and that Buyer is Purchaser will not a legal successor assume or be liable for any liabilities or obligations of Seller and is assuming only or the Assumed Liabilities and Stockholder not any other Liabilities of the Seller expressly assumed by Purchaser pursuant to Section 2.1(c) above, whether accrued, absolute or 4 any of its Affiliates of any nature whatsoevercontingent, whether known or unknown, absolute whether disclosed or contingentundisclosed, whether due or to become due and whether related to the Acquired Assets or otherwise, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations regardless of when asserted (collectively, the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “"Excluded Liabilities”"). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement following liabilities and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or the Stockholder:
(a) liabilities or obligations for any of its Affiliates contracts, agreements, leases or other arrangements, accounts payable, accrued liabilities or other short-term liabilities (other than liabilities under the Assumed Contracts to the extent required to be paid set forth in Section 2.1(c) hereof) or performed prior to Closingany undisclosed or contingent liabilities;
(gb) liabilities or obligations with respect to all Liabilities Taxes, including all Taxes of Seller relating to the ownership or operation of the Business and/or the Acquired Assets on or prior to the Closing and all Taxes arising out of or relating to or associated with any of the Excluded Assetstransactions contemplated hereby;
(hc) all Liabilities with respect to (i) Taxes liabilities or obligations of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities Stockholder for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated hereby which constitute (including liabilities or obligations of, under this Agreement and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Datecontemplated hereunder);
(id) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant liabilities or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, obligations arising out of or related relating to the ownership, possession, use, operation or condition of the Purchased Excluded Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.;
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Other than the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities, and that Buyer is not a legal successor assuming any liability or obligation of Seller and is assuming only Sellers or the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates Selling Person of any nature whatsoevernature, whether known absolute, accrued, contingent, liquidated or unknown, absolute or contingentotherwise, and whether presently existing due or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliatesto become due, as applicable asserted or unasserted, known or unknown (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the collectively, “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, those Liabilities set forth below (collectively, the “Excluded Liabilities”):
(a) Liabilities in respect of any broker’s fees of Seller’s brokerthe Excluded Assets;
(b) Liabilities, including any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this AgreementProceeding or other third Person claim, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of from the ownership activities or operation of the Purchased Assets Business with respect to any period of time (or the conduct of the Business portion thereof) occurring on or prior to the Closing;
(fc) all Liabilities relating to Indebtedness or intercompany payables of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to ClosingSellers;
(gd) all Liabilities arising out of or relating to loans or associated with payables by Sellers to the Excluded AssetsSelling Person or other Liabilities of Sellers to the Selling Person;
(he) all Liabilities with respect of Sellers or their respective direct or indirect owner(s) relating to (i) Taxes of Seller (for any taxable period, whether before or any stockholder member, or Affiliate of Seller)after the Closing Date; (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of arising in connection with the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iviii) all unpaid Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any other Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, under Treasury Regulations Regulation Section 1.1502-6 (or comparable federal, any similar provision of state, local or foreign Law) or as a successor or transferee by contract or otherwise; (iv) payments to any Person under any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or similar agreement with respect to Taxes; or (v) any other Taxes for which Sellers or the Selling Person is responsible under Section 4.4 or Section 4.5;
(f) Liabilities related to Sellers’ or relationships existing on the Selling Person’s transaction fees and expenses contemplated in Section 4.2 or otherwise;
(g) any undisclosed Liability;
(h) Liabilities incurred other than in the ordinary course of Sellers’ business, consistent with past practice;
(i) Liabilities related to any Employee Benefit Plans;
(j) Liabilities related to premiums for officer’s life insurance policies that are in place immediately prior to the Closing Date Date;
(k) all Liabilities for breach of warranty (whether covered by insurance or by agreements entered into or transactions entered into not) with respect to services rendered on or prior to the Closing Date;
(il) all Liabilities of Seller and its Affiliates Sellers relating to any, or with respect to Employees any, present or former employees, officers, directors, retirees, independent contractors or consultants, including, without limitation any change of control or severance Liabilities relating to such individuals, except to the extent accrued for as provided current Liabilities in Exhibit CAdjusted Net Working Capital;
(jm) All Liabilities related to any Real Property, except any Liabilities of the Seller Sellers specifically assumed pursuant to and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated in accordance with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Lease Assignment Agreements; and
(mn) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dateother Liability that is not an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale shall not be obligated to assume or be obliged to pay, perform or otherwise discharge any Liability of assetsSellers, and that Buyer is not a legal successor Sellers shall be solely and exclusively liable with respect to all Liabilities of Seller and is assuming only Sellers, other than the Assumed Liabilities and not any (such Liabilities other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverthan Assumed Liabilities, whether known or unknowncollectively, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include, including the following Liabilities:
(a) any all Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) Sellers relating to or arising out of the ownership otherwise arising, whether before, on or operation of the Purchased Assets or the conduct of the Business prior to after the Closing;
(f) all Liabilities of Seller , out of, or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated in connection with the Excluded Assets;
(hb) other than the Liabilities described in Section 2.3(b) and except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), all Liabilities under each Assigned Contract to the extent based on facts and circumstances arising or accruing on or prior to the Closing Date;
(c) except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), any and all Liabilities relating to any environmental, health or safety matter (including any Liability or obligation under any Environmental Law), arising out of or relating to Sellers’ operation of the Business or its leasing, ownership or operation of real property on or prior to the Closing Date no matter when raised;
(d) all Liabilities relating to noncompliance with respect Permits, Governmental Authorizations, Environmental Health and Safety Laws, and other Legal Requirements that occurred on or before the Closing;
(e) except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), any indebtedness for borrowed money of any Seller and all guarantees of third party obligations by any Seller and reimbursement obligations to guarantors of any Seller’s obligations under letters of credit;
(f) except to the extent that the Liabilities are assumed pursuant to Section 2.3(c) or Section 2.3(d), all Taxes imposed (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to on the Business, the Assets Business or the Assumed Liabilities for Acquired Assets that are properly attributable to any Tax tax period (or portion thereof) ending on or before the Closing Date, and (ii) on Sellers regardless of whether attributable to a taxable period ending prior to, on or after the Closing Date ;
(g) except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), all Liabilities of any Seller to any former or current employee (including any Facility Employee), including (i) for salary, wages, commissions, bonus, severance, vacation pay, holiday pay and any other employee payroll obligations (including accrued payroll Taxes); arising out of acts or omissions with respect to any Benefit Plan, employee practices or programs, including employee claims of wrongful discharge or discrimination, (ii) severance liabilities, (iii) Taxes that arise out obligations of the consummation any Seller under employment contracts, (iv) any change of control amounts payable to any employees as a result of the transactions contemplated hereby which constitute obligations of, by this Agreement and are payable by, (v) all Liabilities that may arise under the Seller, whether such Taxes arise by Law or WARN Act as agreed to by a result of the parties hereto under Section 8.4(a) or other provisions of transactions contemplated in this Agreement; or (iv) , including all Taxes attributable such Liabilities to any Tax period (or portion thereof) ending on or before employee employed by Sellers at the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or Facility immediately prior to the Closing Date Closing;
(h) except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), drafts or by checks outstanding at the Closing;
(i) except to the extent that the Liabilities are assumed pursuant to Section 2.3(d), obligations under any futures contracts, options on futures, swap agreements or forward sale agreements entered into by any Seller; and
(j) except to the extent that the Liabilities are assumed pursuant to Section 2.3, any other Liabilities arising out of or transactions entered into on or in connection with events occurring prior to the Closing Date;
(i) all Liabilities , regardless of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Datewhen raised.
Appears in 1 contract
Excluded Liabilities. 1. Except for the Assumed Liabilities, Purchaser does not assume nor shall Purchaser be Obligated for any other liabilities or responsibilities whatsoever of Seller or the Business as conducted by Seller through the Closing Date (Liability(ies)), including but not limited to the Retained Liabilities described in subparagraph (2) (Excluded Liabilities).
2. The parties acknowledge that Retained Liabilities shall remain the transactions contemplated by this Agreement involve a purchase sale responsibility of and sale of assetsshall be retained, paid, performed, and that Buyer is not a legal successor discharged solely by Seller. As used in this Agreement, "Retained Liabilities" means every liability of Seller and is assuming only other than the Assumed Liabilities and not Liabilities, including
i. any other Liabilities of the Seller or 4 Liability under any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not contract expressly assumed by Buyer hereunder being herein referred Purchaser as set forth in this Agreement that arises after the Closing Date but which Liability arises out of or relates to as any breach associated with any such contract that occurred before the “Excluded Liabilities”)Closing Date;
ii. The Excluded Liabilities include:
any Liability for taxes, including (a) any Liabilities taxes arising as a result of Seller's operation of its business or ownership of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legalPurchased Assets before the Closing Date, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities taxes that will arise as a result of the Seller relating sale of the Purchased Assets pursuant to its performance under this Agreement Agreement, and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities deferred taxes of the Seller for Intercompany Accountsany nature;
(d) iii. any Liabilities of the Seller for asset retirement obligations related to railcarsLiability under any contract not assumed by Purchaser;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of iv. any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities Liability arising out of or relating to the operation of Seller's business or associated with the Excluded AssetsSeller's leasing, ownership, or operation of Seller's personal property;
(h) all Liabilities v. any Liability under any Seller employee plans or relating to payroll, vacation, sick leave, worker's compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for Seller's employees or former employees or both;
vi. any Liability under any employment, severance, retention, or termination agreement with respect any employee of Seller;
vii. any Liability arising out of or relating to (i) Taxes any employee grievance whether or not the affected employees are hired by Purchaser;
viii. any Liability of Seller (to any shareholder of Seller or to any stockholder member, shareholder;
ix. any Liability arising out of any litigation or Affiliate other proceeding commenced after the Closing Date and arising out of Seller); (ii) Taxes or relating to the Business, the Assets any occurrence or the Assumed Liabilities for any Tax period (or portion thereof) ending on or event happening before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, x. any Liability arising out of or related to the ownership, possession, use, operation resulting from Seller's compliance or condition of the Purchased Assets, the Ethanol Plant noncompliance with any legal duty or the Business before the Closing, including Liabilities for personal injury or death or damage to property order of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Dategovernmental body.
Appears in 1 contract
Samples: Asset Purchase Agreement (SupportSave Solutions Inc)
Excluded Liabilities. The parties acknowledge that Except for the transactions contemplated by this Agreement involve a purchase and sale of assetsAssumed Liabilities, and that Buyer is not a legal successor of except as otherwise provided in this Agreement, Seller and is assuming only the Assumed Liabilities and not shall, without any other Liabilities of the Seller responsibility or 4 liability of, or recourse to Purchaser or any of its Affiliates directors, shareholders, officers, employees, agents, consultants, representatives, affiliates, successors, or assigns, absolutely and irrevocably retain any and all liabilities and obligations of any nature whatsoeverkind or nature, whether foreseen or unforeseen, known or unknown, absolute existing or which may arise in the future, fixed or contingent, and whether presently existing matured or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations unmatured of Seller arising out of (a) the ownership, use or possession of the Seller and/or its AffiliatesAssets, as applicable or the operation or conduct of the Business, prior to the Closing Date (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”"EXCLUDED LIABILITIES"). The Excluded Liabilities shall include, but not be limited to:
(a) any Liabilities all litigation and claims described in the Schedules to this Agreement or hereafter commenced based on the acts or omissions of Seller or the Subsidiaries or the condition of the Seller for costs and expenses incurred (or Assets prior to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing Date;
(b) any Liabilities of patent infringement claims, or product liability claims with respect to any products shipped by Seller prior to the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and therebyClosing Date;
(c) any Liabilities claims asserted against Seller, any Subsidiary, or Purchaser arising from the spilling, leaking, pumping, pouring, emitting, emptying, discharging, releasing, injecting, escaping, leaching, dumping, disposing, storing or placing materials or substances into, or otherwise causing damage to the environment based on acts or omissions of Seller prior to the Closing Date, and any claims asserted against Seller, any Subsidiary, or Purchaser under any federal, state or local statute, regulation or ordinance in any way related to the protection of the environment based on acts or omissions of Seller for Intercompany Accountsprior to the Closing Date;
(d) except as otherwise provided in Article 5, all liabilities or obligations of any Liabilities nature to any of Seller's employees or former employees or consultants or former consultants, including those employed or formerly employed or engaged in the Business by Seller for asset retirement obligations related or the Subsidiaries, including without limitation workers compensation, disability and medical benefits payable as a matter of law, contract or pursuant to railcarsbenefit programs or otherwise with respect to any injury, illness or medical conditions arising out of events or exposures prior to the Closing Date, any retiree and inactive employee benefits described in Section 5.3, any wages, commissions, vacations, severance pay or other benefits under Seller's Plans (defined below) with respect to any employee, beneficiary, former employee or retiree of Seller;
(e) any and all liabilities to the extent not accrued or reserved for on the Closing Balance Sheet, except as otherwise expressly set forth provided in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;Section 4.1.
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts Taxes, except to the extent required to be paid or performed prior to Closingaccrued for in the Closing Balance Sheet;
(g) all the liabilities described in the Other Excluded Liabilities arising out of or relating to or associated with the Excluded AssetsSchedule attached hereto;
(h) all Liabilities any design defect claims with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or product units shipped prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates any product warranty claims with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business any product units shipped prior to the Closing Date;, except that Purchaser expressly agrees to make repairs to such products; or
(kj) All Liabilities unless otherwise specifically agreed by Seller, any obligation that would fail to be treated as a "liability" for purposes of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(lSection 368(a)(1)(C) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateCode.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Alliedsignal Inc)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only Except for the Assumed Liabilities and Liabilities, Purchaser shall not assume, be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of the Seller of, or 4 any of its Affiliates Action against, Sellers of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, absolute or contingent, and whether presently currently existing or hereafter arising. All such other liabilities , matured or unmatured, direct or indirect, and obligations shall be retained by and remain liabilities and obligations however arising, whether existing before or on the Closing Date (as defined below) or arising thereafter as a result of any act, omission, or circumstances taking place prior to the Seller and/or its AffiliatesClosing (collectively, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded , including the following Liabilities includeof any of the Sellers or of any predecessor of any of the Sellers, whether incurred or accrued by any of the Sellers before or after the Closing Date:
(a) all Cure Costs for Contracts or Leases to which any Seller is a party that are not Assigned Contracts or Assumed Leases;
(b) any Liability of the Sellers or of any of their predecessors associated with any and all indebtedness, including any guarantees of third party obligations and reimbursement obligations to guarantors of the Sellers’ or any of their respective Affiliates’ obligations, and including any guarantee obligations or imputed Liability through veil piercing incurred in connection with the Sellers’ Affiliates;
(c) all Liability of the Sellers or of any of their predecessors associated with payments for the purchase of goods, including but not limited to customer deposits and prepaid amounts;
(d) all Retained Taxes;
(e) all Liabilities of the Sellers or of any of their predecessors under this Agreement and the transactions contemplated hereby or thereby;
(f) any Liabilities in respect of any Contracts or Leases to which any Seller is a party that are not Assigned Contracts or Assumed Leases, including any Liabilities arising out of the rejection of any such Contracts or Leases pursuant to Section 365 of the Bankruptcy Code;
(g) except for Liabilities expressly identified as Assumed Liabilities, all Liabilities for fees, costs and expenses that have been incurred or that are incurred or owed by the Sellers or of any of their predecessors in connection with this Agreement or the administration of the Bankruptcy Cases (including all fees and expenses of professionals engaged by the Sellers) and administrative expenses and priority claims accrued through the Closing Date and specified post-closing administrative wind-down expenses of the bankrupt estates pursuant to the Bankruptcy Code (which such amounts shall be paid by the Sellers from the proceeds collected in connection with the Excluded Assets) and all costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with (i) the negotiation, execution and consummation of the transactions contemplated under this Agreement and each of the other documents delivered in connection herewith; and (ii) the consummation of the transactions contemplated by this Agreement, includingincluding any retention bonuses, without limitation“success” fees, change of control payments and any broker’s fees of Seller’s broker;
(b) any Liabilities other payment obligations of the Seller relating to its performance under Sellers or of any of their predecessors payable as a result of the consummation of the transactions contemplated by this Agreement and the Transaction Documents and documents delivered in connection herewith;
(h) except for Liabilities expressly identified as Assumed Liabilities, all employment-related Liabilities of the Sellers, including (i) Liabilities for any action resulting from the Sellers’ employees’ separation of employment with the Sellers, including any severance or separation pay, (ii) employment-related Liabilities resulting from the transactions contemplated hereby whether before, on or after the Closing, (iii) Liabilities arising out of or relating to any collective bargaining Contract, labor negotiation, employment Contract, and therebyconsulting Contract with the Sellers, (iv) any Liabilities arising from or related to payroll and payroll Taxes for the current and former employees or independent contractors or other service providers of the Sellers to such person at any time on or prior to the Closing, (v) Liabilities of the Sellers for vacation, sick leave, parental leave, and other paid-time off accrued by the Sellers on and prior to Closing, (vi) all Liabilities with respect to any current or former employee of the Sellers including the Executive Employment Contracts, and (vii) all Liabilities for any failure to comply with applicable Laws or obligations under any Contract, in each case arising out of or related to employment of employees of the Sellers or engagement of independent contractors of the Sellers;
(ci) any all Liabilities related to the WARN Act, to the extent applicable, with respect to the Sellers’ termination of employment of the Sellers’ employees on or prior to Closing (for the avoidance of doubt reference to the Sellers in clause (h) and (i) shall refer to the Sellers and its Affiliates);
(j) all Liabilities arising under or relating to Company Benefit Plans (including all assets, trusts, insurance policies and administration service contracts related thereto);
(k) all Liabilities of the Sellers or of any of their predecessors to their respective equity holders respecting dividends, distributions in liquidation, redemptions of interests, option payments or otherwise, and any Liability of the Sellers or of any of their predecessors pursuant to any Contract or Lease set forth on Schedule 1.1(a), or has any material business arrangement with, or has any material financial obligations to or is owed any financial obligations from, any Seller for Intercompany Accountsor, to the Knowledge of the Sellers, any actual competitor, vendor or licensor of any Seller that is not an Assigned Contract;
(dl) all Liabilities arising out of or relating to any Liabilities business or property formerly owned or operated by any of the Seller for asset retirement obligations related to railcarsSellers, any Affiliate or predecessor thereof, but not presently owned and operated by any of the Sellers as of the date hereof;
(em) except as expressly set forth all Liabilities relating to claims, actions, suits, arbitrations, litigation matters, proceedings or investigations (in this Agreementeach case whether involving private parties, all IndebtednessGovernmental Authorities, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to involving, against, or affecting any Acquired Asset, the Acquired Businesses, the Sellers, any of their Affiliates or predecessors, or any assets or properties of the Sellers or of any of their predecessors, in each case arising out of the ownership or operation of the Purchased Assets Acquired Businesses or the conduct of the Business any Acquired Asset prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(gn) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder memberunder Environmental Laws, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement than to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased AssetsAcquired Businesses or any Acquired Asset from and after the Closing, the Ethanol Plant whether or the Business before the Closing and any liabilities and obligations, including any products liability for defective not yet booked as accounts payable by Sellers as of or off-spec Inventories sold to Third Parties prior to the Closing;
(o) all accounts payable of the Sellers or of any of their predecessors existing as of or prior to the Closing;
(p) all Liabilities outstanding as of and arising after the Closing Datefor any contract for delivery of or returns of products previously sold to customers, whether or not any customer has provided a deposit for the sale except for under any Assigned Contract;
(q) all Liabilities of the Sellers or of any of their predecessors arising out of any Contract, Permit, or claim that is not transferred to Purchaser hereunder; and
(r) all Liabilities for all Professional Fees Amounts.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision in this Agreement involve a purchase to the contrary, the Purchaser shall not assume and sale shall not be obligated to assume or be obliged to pay, perform or otherwise discharge any Liability of assetsthe Sellers, and that Buyer is not a legal successor the Sellers shall be solely and exclusively liable with respect to all Liabilities of Seller and is assuming only the Sellers, other than the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever(collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The For the purpose of clarity, and without limitation of the generality of the foregoing, the Excluded Liabilities shall include, without limitation, each of the following liabilities of the Sellers:
(a) any Liabilities all Indebtedness of the Seller for costs Sellers and expenses incurred their Affiliates;
(b) all guarantees of Third Party obligations by the Sellers and reimbursement obligations to guarantors of the Sellers’ obligations or to be incurredunder letters of credit;
(c) for services performed by its legalany Liability of the Sellers or their directors, financialofficers, accounting and investment banking advisors stockholders or agents (acting in connection with such capacities), arising out of, or relating to, this Agreement or the transactions contemplated by this Agreement, whether incurred prior to, at or subsequent to the Closing Date, including, without limitation, other than as specifically set forth herein, including with respect to the Assumed Liabilities, all finder’s or broker’s fees and expenses and any and all fees and expenses of any representatives of the Sellers;
(d) other than as specifically set forth herein, any Liability relating to events or conditions occurring or existing in connection with, or arising out of, the Business as operated prior to the Closing Date, or the ownership, possession, use, operation or sale or other disposition prior to the Closing Date of the Assets (or any other assets, properties, rights or interests associated, at any time prior to the Closing Date, with the Business) including, without limitation, any broker’s fees of Seller’s broker;
(bliability with respect to Customer Contract Cure Costs or any Cure Cost payable by the Sellers pursuant to Section 2.1.7(b) any Liabilities and Section 2.1.7(c) of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcarsSellers Disclosure Schedule;
(e) except other than as expressly specifically set forth in this Article VII, the Assumed Liabilities, or as specifically set forth in the Loaned Employee Agreement, all Indebtednessany Liability to any Person at any time employed by the Sellers or to any such Person’s spouse, Contracts and Liabilities children, other dependents or beneficiaries, with respect to incidents, events, exposures or circumstances occurring at any time during the period or periods of any kindsuch Person’s employment by the Sellers and arising from or related to such Person’s employment by the Sellers whenever such claims mature or are asserted, character including, without limitation (except as otherwise specifically set forth in Article VII, the Assumed Liabilities or description the Loaned Employee Agreement), all Liabilities arising (whether known i) under the Seller Employee Plans, (ii) under any employment, wage and hour restriction, equal opportunity, discrimination, plant closing or unknownimmigration and naturalization Laws, accrued(iii) under any collective bargaining Laws, absoluteagreements or arrangements or (iv) in connection with any workers’ compensation or any other employee health, contingent accident, disability or otherwisesafety claims;
(f) any Liability relating to any real properties owned, operated or otherwise controlled by the Sellers or their Affiliates (including the Real Property) to the extent arising from events or conditions occurring or existing prior to the Closing Date, including, without limitation, where connected with, arising out of or relating to: (i) Releases, Handling of Hazardous Materials or violations of Environmental Laws or (ii) claims relating to employee health and safety, including claims for injury, sickness, disease or death of any Person;
(g) any Liability of the Sellers under Title IV of ERISA;
(h) any pension or retirement Liability of the Sellers;
(i) all Liabilities for, or related to, any obligation for any Tax that the Sellers bear under Article VI, and, for the avoidance of doubt, the Parties intend that no Purchaser or Designated Purchaser shall have any transferee or successor liability for any Tax Sellers bear under Article VI;
(j) all Actions pending against the Sellers on or before the Closing Date or to the extent relating to the Business or the Assets prior to the Closing Date even if instituted after the Closing Date;
(k) any Liability incurred by the Sellers or their respective directors, officers, stockholders, agents or employees (acting in such capacities) after the Closing Date;
(l) except as provided in Section 2.1.3(b), all liabilities for accounts payable;
(m) any Liability relating to or arising out of the ownership or operation of the Purchased Assets an Excluded Asset or the conduct operation by the Sellers of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to business other than the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending whether before, on or before after the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(mn) All those Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition set forth on Section 2.1.4(n) of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSellers Disclosure Schedule.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that Notwithstanding the transactions contemplated by provisions of Section 1.04 or any other provision in this Agreement involve a purchase to the contrary, Assets Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates (other than TMS Sub) of any kind or nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such whatsoever other liabilities and obligations shall be retained by and remain liabilities and obligations of than the Seller and/or its Affiliates, as applicable Assumed Liabilities (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Without limiting the generality of the foregoing, the Excluded Liabilities includeshall include the following:
(a) any Liabilities of the Seller for costs and expenses arising or incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by negotiation, preparation, investigation and performance of this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others, including the Seller Transaction Expenses;
(b) any Liability for, without duplication, (i) all Taxes of, imposed on or owed by Seller (or any stockholder or Affiliate of Seller) for any period; (ii) all Taxes relating or attributable to the Excluded Assets or Excluded Liabilities for any period; (iii) all Taxes relating to the Business or the Purchased Assets (including Taxes described in Section 5.08(e)(i)), or the Assumed Liabilities related to any Pre-Closing Tax Period and any Straddle Period (such Taxes for a Straddle Period determined in accordance with the principles of Section 5.08(e)); (iv) Transfer Taxes that are the responsibility of Seller pursuant to Section 5.08(f)); or (v) all Taxes of Seller (or any stockholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a Liability of Assets Buyer under any common law doctrine of de facto merger or transferee or successor liability, any bulk sales, bulk transfer or similar Laws or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Seller for Intercompany AccountsExcluded Assets;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities respect of any kindpending or threatened Action arising out of, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out otherwise in respect of the ownership or operation of the Business or the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required such Action relates to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into operation on or prior to the Closing Date;
(e) any Liabilities relating to, arising under or in connection with any Seller Debt;
(f) any Liabilities relating to, arising under or in connection with any Benefit Plan;
(g) any recall, design defect or similar claims of any products manufactured or sold by Seller;
(h) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller or any of its Affiliates, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold by Seller or any of its Affiliates or any service performed by Seller;
(i) all any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of Seller and its Affiliates with respect or relating to Employees as provided in Exhibit Cfacts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller;
(j) All any Liabilities of the Seller relating to any present or former employees, agents or independent contractors of Seller, including, without limitation, any Liabilities associated with any claims for (i) wages or other benefits; (ii) workers’ compensation; or (iii) accrued and its Affiliates related unused vacation, sick leave and other paid time off, in each case except to the Green Shift License Agreement extent included on Exhibit A as current liabilities and taken into account in the calculation of Working Capital as of Closing;
(k) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same);
(l) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Licenses, (i) which are not Business Contracts; (ii) which are not validly and effectively assigned to Assets Buyer pursuant to this Agreement; (iii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iv) to the extent such Liabilities arose from the operation arise out of the Ethanol Plant or the Business relate to a breach by Seller of such Contracts prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500Closing; and
(m) All those Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSeller specifically set forth on Schedule 1.05(m).
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (BioTelemetry, Inc.)
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding anything else in this Agreement involve a purchase to the contrary, Buyer shall not assume and sale of assetsshall not be responsible to pay, and that Buyer is not a legal successor perform or discharge any Liabilities or obligations of Seller and is assuming only or with respect to the Business or Purchased Assets other than specifically set forth as an Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoeverLiability (collectively, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities includeWithout limiting the generality of the foregoing, Seller will be responsible for and pay, perform or discharge when due the following:
(a) any Liabilities or obligations arising out of, relating to or with respect to Seller’s ownership, possession, use or operation of the Seller for costs and expenses incurred (Purchased Assets or the Business on or before the Closing, including as a result of a failure to be incurred) for services performed by its legal, financial, accounting and investment banking advisors comply with any Contract on or prior to the Closing or in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s brokerClosing;
(b) any Liabilities or obligations relating to or arising out of the Seller Excluded Assets;
(c) any Liabilities or obligations for (i) Taxes relating to its the Business, the Purchased Assets or the Assumed Liabilities for any taxable period (or portion thereof) ending on or prior to the Closing Date and (ii) any other Taxes of Seller or any stockholders or Affiliates of Seller for any taxable period;
(d) any Liabilities or obligations relating to or arising out of the employment, or termination of employment, of any employee (or contractor) of Seller (which includes Business Employees), whether occurring before, on or, except for Transferred Employees, after the Closing Date; provided, however, Seller shall remain responsible for (i) workers’ compensation claims of any employee (or contractor) which relate to events occurring at any time of the employee’s employment with Seller, and (ii) any liabilities or obligations under any Benefit Plan or Contract for employment with Seller other than any Contract that is an Assigned Contract (collectively, the “Excluded Employee Liabilities”);
(e) any Liabilities or obligations relating to or arising out of any Benefit Plan or policy of Seller or which an employee (or contractor) of Seller claims a benefit;
(f) any Liabilities or obligations of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance under of this Agreement and Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby;, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others and Taxes for which Seller is responsible; and
(cg) any all Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement or obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation matters described on Section 4.05 of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateDisclosure Schedules.
Appears in 1 contract
Samples: Asset Purchase and Servicing Rights Agreement (Eagle Financial Services Inc)
Excluded Liabilities. The parties acknowledge that Notwithstanding anything to the transactions contemplated by contrary contained in this Agreement involve a purchase Agreement, Buyer shall not assume or be liable for and sale Sellers shall retain and remain responsible for all of assetsSellers’ debts, liabilities and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates obligations of any nature whatsoever, other than the Assumed Obligations, whether accrued, absolute or contingent, whether known or unknown, absolute whether due or contingentto become due and whether related to the Business and the Acquired Assets or otherwise, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations regardless of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
(a) any Liabilities of the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreementwhen asserted, including, without limitation, the following liabilities or obligations of Sellers (none of which shall constitute Assumed Obligations) (collectively, the “Excluded Liabilities”):
(a) All of Sellers’ liabilities or obligations under this Agreement or under any broker’s fees other agreement between Sellers and Buyer entered into on or after the date of Seller’s brokerthis Agreement;
(b) any Liabilities All of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities Sellers’ liabilities arising out of or relating to or associated with the an Excluded AssetsAsset;
(hc) All of Sellers’ liabilities under any Contract not assumed by Buyer under Section 2.3, including without limitation the Indemnity for Bank Guarantee by and among Australian Subsidiary, National Australia Bank Limited and Xxxxx Xxxx Investment Pty Ltd;
(d) Except as specifically set forth in Section 2.3, any liability of Sellers to the extent arising out of or relating to the operation of the Business prior to Closing, including without limitation any claims arising after Closing related to any Software sold to third parties prior to Closing or Sellers’ use of unlicensed software;
(e) Except for Taxes specifically included as Assumed Obligations, all Liabilities with respect to (i) liabilities and obligations of Sellers for Taxes for any period, and any liability of Sellers for the unpaid Taxes of Seller any Person under Treas. Reg. § 1.1502-6 (or any stockholder membersimilar provision of state, local or Affiliate of Sellerforeign law); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract contract, or otherwise;
(f) Unless otherwise specifically payable by Buyer pursuant to this Agreement, all of Sellers’ liabilities or obligations for expenses, Taxes or fees incident to or arising out of the negotiation, preparation, approval, or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby, including all attorneys’ and accountants’ fees and disbursements, brokerage fees, consultants’ fees and finders’ fees;
(g) Any liability or obligation pertaining to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 discontinued operation owned or comparable federal, state, local or foreign Law) with respect operated by Sellers and related to Liabilities or relationships existing on or the Business as it was operated and discontinued by Sellers prior to the Closing Date or other than liabilities and obligations which are Assumed Obligations;
(h) Any obligation of Sellers to indemnify any Person by agreements entered into or transactions entered into on or prior reason of the fact that such Person was a shareholder, director, officer, employee (other than a UK employee but only to the Closing Dateextent such obligation arises pursuant to a UK Employee’s terms of employment), or agent of any of Sellers or was serving at the request of Sellers as a partner, trustee, director, officer, employee (other than a UK employee but only to the extent such obligation arises pursuant to a UK Employee’s terms of employment), or agent of another entity (regardless of whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and regardless of whether such indemnification is pursuant to any statute, charter document, bylaw, agreement, or otherwise);
(i) all Liabilities of Seller Sellers’ obligations to Employees terminated prior to Closing, including, without limitation, Xxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxxx, and its Affiliates any Terminating Australian Employees (except with respect to Employees as provided in Exhibit Cliability to Xxxxx.xxx and the Australian Subsidiary for Australian Employee Termination Benefits to be paid to such Terminating Australian Employees);
(j) All Liabilities intercompany accounts, including intra-group loan balances, relating to the Business or Acquired Assetsthe;
(k) Any liabilities of Sellers based on acts or omissions occurring after the Closing;
(l) Any liabilities of Sellers under the Civil Code of Quebec, the Act respecting Labour Standards, the Charter of Human Rights and Freedoms, the Labour Code, the Act respecting occupational health and safety, the Workplace Health and Safety Xxx 0000 (Qld), any other law in relation to occupational health and safety the Act respecting industrial accidents and occupational diseases, the Charter of the French language, the Pay Equity Act or any other applicable law in the Province of Quebec, any other law in relation to anti-discrimination or equal opportunity any other law in relation to anti-discrimination or equal opportunity or any employment, commission, severance, retention or termination agreement between any Seller and any employee of any Seller arising prior to the Closing Date other than those liabilities for which Buyer shall become responsible at law as a result of offering employment to such Employees or as a result of such Employees being transferred to Buyer by operation of law as and from the Closing Date. For the avoidance of doubt, this Section 2.4(l) shall not apply to the UK Employees, the liabilities in respect of which shall be subject to Section 5.5(c);
(m) Any liabilities of Sellers to the extent arising out of or resulting from any Sellers’ compliance or non-compliance with any law or order of any Governmental Body, including without limitation any bulk sales laws related to the transactions contemplated herein and TUPE requirements relating to required consultation with UK Employees prior to Closing;
(n) Any liability or obligation of Sellers for indebtedness for borrowed money;
(o) All Pre-Effective Time Accounts Payable and accrued liabilities other than those liabilities for which Buyer is responsible following the adjustment pursuant to Section 2.8; and
(p) Any liability related to Sellers’ indebtedness to any of the Sellers’shareholders, officers, directors or Employees;
(q) Any liability related to the termination by Buyer of an employment contract, which contract has the effect of a contract made between the Buyer and the employee concerned as a result of TUPE, and which is not disclosed in the Seller Disclosure Schedule or which is an employment contract with any Employee in the UK that is not listed on Schedule 3.18 of the Seller and its Affiliates related to the Green Shift License Agreement to the extent Disclosure Schedule as a UK Employee;
(r) Any liability in connection with or as a result of any claim (including any individual employee entitlement under or consequent on such Liabilities arose from the operation claim) by any trade union or staff association or any other employee representatives (whether or not recognised by Sellers in respect of all or any of the Ethanol Plant UK Employees) within the meaning of TUPE and/or the Directive arising from or connected with any failure by the Business Sellers to comply with any legal obligations to such trade unions, staff associations or employee representatives within the meaning of TUPE and/or the Directive whether under Regulation 10 of TUPE or under the Directive or otherwise whether any such claim arises or has its origin before, on or after Closing;
(s) Any liability in respect of any Employee for the period prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(mt) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or Any liabilities arising out of the ownership or operation tax liabilities set forth on Schedule 3.17 of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSeller Disclosure Schedule.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by Notwithstanding any provision of this Agreement involve a purchase to the contrary (and sale without implication that Purchaser is assuming any liability of assetsSeller or the Business or any liability related to any of the Assets not expressly excluded), and that Buyer Purchaser is not a legal successor of Seller assuming and is assuming only shall not be required to pay, perform or discharge any liabilities or obligations that are not specifically included in the Assumed Liabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, whether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). Seller shall (or shall cause an Affiliate to) pay, perform or discharge when due or required to be performed or discharged, or contest in good faith, the Excluded Liabilities. The Excluded Liabilities shall include, but are not limited to, the following:
(a) any Liabilities of the Seller for costs and expenses incurred (all liabilities or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees obligations of Seller’s broker, whether known or unknown, contingent, matured or otherwise, whether currently existing or hereinafter created, that are not specifically identified as Assumed Liabilities;
(b) any Liabilities of the Seller relating to its performance under this Agreement all obligations and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) liabilities relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated incurred in connection with the Excluded Assets;
(hc) all Liabilities with respect obligations and liabilities based on any actual or alleged defect in the manufacture, quality, conformity to (i) Taxes specification or fitness for purpose of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to product sold by the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; , including all product liability, product warranty obligations and liabilities and all obligations and liabilities in respect of product recalls or product warnings (iiiincluding voluntary recalls and warnings reasonably intended to avoid or mitigate liability);
(d) all liabilities for income Taxes, franchise Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations ofor other Taxes based on income, revenue or gross receipts, and are payable by, all liabilities for or relating to other Taxes to the Seller, whether such extent the other Taxes arise by Law from or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable relate to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(e) all liabilities related to, associated with or arising out of any breach or default, failure to perform and overcharges or underpayments, in each case arising from events or actions prior to the Closing under the contracts included in the Assets or Assumed Liabilities;
(f) all legal , accounting, brokerage, investment banking and finder’s fees or other fees and expenses incurred by or on behalf of Seller or its Affiliates in connection with this Agreement and the transactions contemplated hereby;
(g) all liabilities related to, associated with or arising out of any action, claim, suit or proceeding with respect to the operation of the Business prior to the Closing, whether such action, claim, suit or proceeding is brought prior to, on or after the Closing;
(h) all pre-Closing liabilities related to unpaid invoices or bills representing amounts alleged to be owed with respect to the Business, or other alleged obligations of Seller or with respect to the Business;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit CTransfer Tax liabilities;
(j) All Liabilities of the all liabilities prorated to Seller and its Affiliates related pursuant to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSection 2.6.
Appears in 1 contract
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assetsPurchaser shall not assume any liabilities, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Liabilities and not any other Liabilities obligations or commitments of the Seller relating to or 4 arising out of the operation of the Business or the ownership of the Assets prior to the Closing Date other than the Assumed Liabilities. Notwithstanding anything to the contrary in this Agreement, Purchaser shall not assume or in any way become liable for any of its Affiliates the debts, liabilities, or obligations of any nature whatsoeverwhatsoever (other than the Assumed Liabilities) relating to the Seller, the Business or the Assets, whether accrued, absolute, contingent or otherwise, whether known or unknown, absolute whether due or contingentto become due, whether related to the Business or the Assets and whether disclosed on the Schedules attached hereto, and whether presently existing regardless of when or hereafter arising. All such other liabilities and obligations shall be retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein whom asserted(collectively referred to herein as the “Excluded Liabilities”). The Excluded Liabilities include:
(a,) any Liabilities and, for the avoidance of doubt and not in limitation of the foregoing, Purchaser shall not assume any of the liabilities, obligations or commitments of Seller for costs that are described below (which shall also be Excluded Liabilities):
1. Any of the Seller’s Liabilities or obligations under this Agreement, the Schedules attached hereto and expenses incurred (or to be incurred) for services performed any other agreements entered into by its legal, financial, accounting and investment banking advisors the Seller in connection with the transactions contemplated by this Agreement, including, without limitation, ;
2. any broker’s fees of the Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller liabilities or obligations for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreementexpenses, all Indebtedness, Contracts and Liabilities of any kind, character fees or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating taxes incident to or arising out of the ownership negotiation, preparation, approval or operation authorization of the Purchased Assets this Agreement or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller consummation (or any stockholder member, or Affiliate of Seller); (iipreparation for the consummation) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute (including all attorneys, accountants’ and brokerage fees);
3. any of the Seller’s liabilities or obligations ofwith the Social Security Administration, the Federal Unemployment Insurance, the United States Department of Treasury, the Puerto Rico Department of Treasury (“Departamento de Hacienda”), the Puerto Rico State Insurance Fund (“Fondo del Seguro del Estado”), the Puerto Rico Department of Labor and Human Resources and any other state or federal agency, and are payable bymunicipality of the Commonwealth of Puerto Rico;
4. any of the Seller’s liabilities or obligations for any federal or Puerto Rico taxes for any period prior to the Closing Date;
5. any liability or obligation under or with respect to any employment agreement, any employee benefit plan, any employee health, disability or other welfare plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its parents or affiliates, or with respect to which the Seller, whether such Taxes arise by Law parent or as agreed to by affiliate has any liability;
6. any of the parties hereto under Section 8.4(a) Seller’s liabilities or obligations for vacation pay, sick pay, holiday pay, salary, bonuses, pension and/or retirement benefits, or other provisions of this Agreement; payments or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on liabilities arising at or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant kind to any Law employees or current or former employee of the Seller;
7. any liability or obligation relating to workers’ compensation claims which were filed or presented by the Seller’s employees at or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising at or before the Closing Date;
8. any of the Seller’s liabilities or obligations (includingA) arising by reason of any violation or alleged violation of any law of any governmental entity or any requirement of any governmental entity, but not limited toor (B) arising by reason of any breach or alleged breach by the Seller of any agreement, Treasury Regulations Section 1.1502-6 contract, lease, license, commitment, instrument, judgment, order or comparable federaldecree;
9. any of Seller’s liabilities or obligations relating to any legal action, stateproceeding or claim arising out of or in connection with Seller’s conduct of the Business at or before the Closing Date or any other conduct of the Seller, local the Seller’s officers, directors, employees, consultants, agents or foreign Law) with respect to Liabilities or relationships existing on advisors at or prior to the Closing Date Date;
10. any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
11. any liabilities for premiums that may be due and payable to insurance companies for insurance written before the Closing Date, whether or not such premiums shall have been received by agreements entered into Seller in its capacity as general agent or transactions entered into authorized representative;
12. any liability, obligation or commitment to return or refund to an insurance company, any unearned commission on policy cancellations or reductions in policy premiums collected on or prior to the Closing Date;
(i) all Liabilities 13. any liabilities, obligations or commitments of Seller and its Affiliates with respect to Employees any statutory or contractual severance payment that may be due or payable to any of Seller’s employees on account of their termination of employment with Seller (whether or not employed by Purchaser) as provided a result of or in Exhibit C;
(j) All Liabilities connection with or resulting from the sale of the Assets and other transactions contemplated in this Agreement, including but not limited to any liability that may be imposed or asserted against the Seller and its Affiliates related to under Act No. 80 of May 30, 1976, as amended (the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500“Act 80 Severance Payments”; and
(m) All Liabilities accruing, arising out 14. any other liabilities or obligations of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing DateSellers other than Assumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. The parties acknowledge that the transactions contemplated by this Agreement involve a purchase It is understood and sale of assets, and agreed that Buyer is shall not a legal successor assume or be liable for (i) any Transaction Expenses that remain unpaid or are incurred by Seller or Holding Company following Closing, (ii) third party costs and expenses incurred by Seller relating to the negotiation or consummation of the Transactions (including the winding-up, liquidation and dissolution or Seller) and the preparation and filing of Seller’s final income tax returns, including without limitation, fees and expenses of counsel, accountants or investment bankers, (iii) any federal, state, county or local taxes of Seller and is assuming only the Assumed Liabilities and not (including any other Liabilities liability under Section 280G or 4999 of the Code), (iv) any liabilities of Seller for federal, state, county or 4 local income taxes on the Purchase Price, (v) any liability or obligation of its Affiliates of Seller under the Excluded Contracts, (vi) any nature whatsoeverliabilities under any Employee Benefit Plan maintained, whether known administered or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such contributed to by Seller other than liabilities and obligations under the Split Dollar Arrangements, (vii) any liabilities related to accrued vacation or paid time off owing to employees, independent contractors or other persons, including Former Seller Employees, which Seller shall be retained by and remain permitted to payout prior to Closing, (viii) any liability relating to any Wrongful Acts of Seller or Holding Company, (ix) any liabilities and obligations related to or arising out of the Seller and/or its AffiliatesExcluded Assets; or (x) any liabilities related to Securities Claims (collectively, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include:
Notwithstanding the foregoing, the parties elect the “alternate procedure” pursuant to IRS Revenue Procedure 2004-53, 2004-2 C.B. 320, and agree that Buyer shall be considered a “successor employer” for employment Tax purposes and that Buyer shall assume responsibility for filing all employment Tax Returns (a) including for any Liabilities of the Seller for costs and expenses incurred (or to be incurredactivity in “pre-Closing” periods) for services performed by its legal, financial, accounting and investment banking advisors the year in connection with the transactions contemplated by this Agreement, including, without limitation, any broker’s fees of Seller’s broker;
(b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby;
(c) any Liabilities of the Seller for Intercompany Accounts;
(d) any Liabilities of the Seller for asset retirement obligations related to railcars;
(e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or description (whether known or unknown, accrued, absolute, contingent or otherwise) relating to or arising out of the ownership or operation of the Purchased Assets or the conduct of the Business prior to the Closing;
(f) all Liabilities of Seller or any of its Affiliates under the Assumed Contracts to the extent required to be paid or performed prior to Closing;
(g) all Liabilities arising out of or relating to or associated with the Excluded Assets;
(h) all Liabilities with respect to (i) Taxes of Seller (or any stockholder member, or Affiliate of Seller); (ii) Taxes relating to the Business, the Assets or the Assumed Liabilities for any Tax period (or portion thereof) ending on or before which the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date;
(i) all Liabilities of Seller and its Affiliates with respect to Employees as provided in Exhibit C;
(j) All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or the Business prior to the Closing Date;
(k) All Liabilities of Seller and their respective Affiliates related to Syngenta/ADM Actions;
(l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-2021-0500occurs; and
(m) All Liabilities accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (First Financial Northwest, Inc.)
