Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”): (a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions; (b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business; (c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing; (d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2; (e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and (f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement to Agreement, other than the contraryAssumed Liabilities, Buyer (nor any of its Affiliates) shall Purchaser will not and does not assume, and shall assume or be deemed not to have assumed and shall not liable or otherwise be obligated to pay, performperform or otherwise discharge, discharge or in any other manner be liable or and Seller will retain and remain responsible for all of its debts, liabilities and obligations of any Liabilities of Sellers that are not Assumed Liabilitiesnature whatsoever with respect to any event, occurrence, circumstance or condition arising or occurring prior to or through the Closing (whether such liabilities become known prior to, on or after the Closing Date), whether existing on accrued or unaccrued, whether absolute or contingent, whether known or unknown, whether due or to become due and whether related to the Closing Date Acquired Assets or arising thereafterotherwise, including Liabilities relating to or arising out and regardless of any of the following when asserted (collectively, the “Excluded Liabilities”):). The Excluded Liabilities shall include, without limitation, the following liabilities and obligations:
(a) all costs and expenses incurred any liabilities or to be incurred by Sellers obligations in connection with this Agreement and the consummation respect of the Transactions;Excluded Assets; or
(b) all Liabilities any liabilities to Business Employees arising through and including the Closing Date, including, without limitation, those Business Employees who are hired by Purchaser, including, without limitation, (i) related to liabilities for compensation, bonus, equity incentives, severance or other payments made under any current employment Contract (or former employee other similar instrument) by and between Seller (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor Affiliates) and the Business Employees or as required by applicable law and (ii) liabilities for benefits under any benefit plan under the Employee Retirement Income Security Act of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or 1974 with respect to any claims incurred and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, benefits accrued by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period Employees on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlClosing Date.
Appears in 3 contracts
Samples: Purchase and Sale of Assets Agreement (Cypress Semiconductor Corp /De/), Purchase and Sale Agreement (Cypress Semiconductor Corp /De/), Purchase and Sale Agreement (Netlogic Microsystems Inc)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer (nor is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of its Affiliates) shall not Seller of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of Seller (all such liabilities and obligations not being assumed being herein referred to have assumed as the "EXCLUDED LIABILITIES"), and, notwithstanding anything to the contrary in this Agreement and shall not be obligated to paywithout limiting the foregoing, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any none of the following (collectively, shall be Assumed Liabilities for the “purposes of this Agreement but rather shall be Excluded Liabilities”)::
(a) all costs and expenses subject to Section 8.02, any liability or obligation for Taxes arising from or with respect to the Purchased Assets, the System or the System Operations which is incurred in or attributable to be incurred by Sellers in connection with this Agreement and the consummation of the Transactionsany Pre-Closing Tax Period;
(b) all Liabilities (i) related to any current liability or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor obligation of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way Affiliated Company relating to any current and former employees, Employee Benefit Plan Plans or Benefit Arrangements (including, without limitation, liabilities and obligations under ERISA, the Code and any other compensation or benefit plansapplicable statutes, programsorders, arrangements, or agreements of any kind (including all assets, trusts, insurance policies rules and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessregulations);
(c) except as provided under Section 2.2(d), all Liabilities arising out of, any liability or obligation relating to any asset that is an Excluded Asset or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingis otherwise not a Purchased Asset;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Environmental Liability;
(e) all Liabilities any liability or obligation relating to any brokerbrokerage commissions, finder or agent finder's fees or similar intermediary for any broker’s fee, finders’ fee fees directly or similar fee or commission relating indirectly related to the transactions contemplated by this Agreement for which based in any Seller way on any arrangements, agreements or its Subsidiaries understandings made by or Affiliates are responsibleon behalf of Seller, including any such payments due to Xxxxxxx & Associates, L.P.; and
(f) all liabilities for (i) customer deposits other than the Closing Deposit Liabilities related to and (ii) unearned revenue other than the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlClosing Unearned Revenue Liabilities.
Appears in 3 contracts
Samples: Asset Purchase Agreement (American Cellular Corp /De/), Asset Purchase Agreement (American Cellular Corp /De/), Asset Purchase Agreement (American Cellular Corp /De/)
Excluded Liabilities. Notwithstanding anything the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer (nor any of its Affiliates) Newco shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated responsible to pay, perform, perform or discharge or in any other manner be liable or responsible for any Liabilities of Sellers the Company or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Company 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 generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Company arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Company (or any Member or Affiliate of the Company) or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or that are not Assumed Liabilities, whether existing on the Closing Date responsibility of the Company pursuant to Article VI; or arising thereafter, (iii) other Taxes of the Company (or any Member or Affiliate of the Company) of any kind or description (including any Liability for Taxes of the Company (or any Member or Affiliate of the Company) that becomes a Liability of Newco 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 any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the TransactionsAssets;
(bd) all any Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor in respect of any Seller pending or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities threatened Action arising out of, relating to or with otherwise in respect of the operation of the Business or the Purchased Assets to any and all Employees, and contractors of Sellers the extent such Action relates to such operation on or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for prior to the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Closing Date;
(e) all Liabilities any claim for injury to any broker, finder a Person or agent property which arises out of or similar intermediary for any broker’s fee, finders’ fee is based upon the use by Persons of the Real Property or similar fee while an invitee or commission relating trespasser on the Real Property resulting from actions and/or failures to act prior to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; andClosing;
(f) all any Liabilities related of the Company arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Company;
(g) any Liabilities of the Company, other than any Current Liabilities included on the Estimated Closing Working Capital Statement, to any present or former Personnel arising prior to the Acquired Assets Closing Date, including, without limitation, employees, officers, directors, members, managers, Institutional Board members, retirees, independent contractors or consultants of the Business Company, 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;
(h) any Liabilities to any Governmental Authority including any Educational Agency arising from or related actions and/or failures to act prior to the Closing Date;
(i) any Environmental, Health, and Safety Laws or the presence of or release ofEnvironmental Claims, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired AssetsLiabilities under Environmental Laws, to the extent arising out of or attributable relating to any period facts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising from actions and/or failures to act prior to the Closing Date;
(j) any trade accounts payable of the Company to the extent not included on the Estimated Closing Working Capital Statement;
(k) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Company (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as Company Indemnitees;
(l) any Liabilities under the Excluded Contracts or any other Contracts, including Company IP Agreements, (i) which are not validly and effectively assigned to Newco pursuant to this Agreement; or (ii) to the extent such Liabilities arise out of or relate to a breach by the Company of such Contracts prior to the Closing; provided that ;
(m) any Liabilities associated with debt, loans or credit facilities of the Company or guaranteed by the Company and/or the Business owing to financial institutions;
(n) any Liabilities arising out of, in respect of or in connection with the event failure by the Company or any of its Affiliates to comply with any conflict between Law or Governmental Order;
(o) those Liabilities of the Company set forth on Section 2.2 and this Section 2.3, Section 2.3 will control2.04(o) of the Disclosure Schedules.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Aspen Group, Inc.)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing or commitment (written or oral) to the contrary, Buyer (the Purchaser is assuming only the Assumed Liabilities and neither the Purchaser nor any of its AffiliatesAffiliates is assuming any other liability or obligation of the Sellers (or any predecessors or Affiliates of the Sellers or any prior owners of all or part of their businesses and assets) of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of the Sellers (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the foregoing and does not assumenotwithstanding anything to the contrary in this Agreement, none of the following shall be Assumed Liabilities for the purposes of this Agreement and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”)::
(a) all costs and expenses incurred any liability or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactionsobligation under any Environmental Laws;
(b) all Liabilities (i) any liability or obligation related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any employees of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including except as listed on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessSchedule 1.03;
(c) except as provided any liability or obligation under Section 2.2(d)any Contract, all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingother than the Acquired Contracts;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes liability or obligation arising out of any breach of or default under any Acquired Contract relating to any period prior to Closing other Person than any product or services warranty claim or work relating to products or services sold or provided prior to Closing under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Customer Contract;
(e) all Liabilities any liability or obligation for indebtedness for borrowed money or evidenced by bonds or notes (including accrued interest and fees with respect thereto);
(f) any Taxes other than those for which Purchaser is expressly liable pursuant to Section 5.07;
(g) any broker, finder liability or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligation relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblean Excluded Asset; and
(fh) all Liabilities related to the Acquired Assets any liability or the Business arising from obligation under any International Plan, Employee Plan or related to any EnvironmentalBenefit Arrangement, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; except as provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control5.04(a).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Divine Inc), Asset Purchase Agreement (Divine Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to Except for the contraryAssumed Liabilities, Buyer La Jolla does not assume and shall not be responsible for, and shall not otherwise bear the economic burden of: (nor A) any liabilities, obligations, debts or expenses of Solana or any of its Affiliates) shall not , including, without limitation, any liabilities for accounts payable; accrued expenses; taxes; indebtedness for borrowed money; contractual obligations other than arising under the Assigned Agreements, whether past, accrued or executory; obligations to employees and does not assumeformer employees in respect of accrued salaries, and shall be deemed not to have assumed and shall not be obligated to wages, vacation pay, performseverance pay and obligations under the benefit plans; liabilities to Regulatory Authorities; liabilities for injuries to persons or property; other tort liabilities; liabilities under environmental laws; liabilities under collective bargaining agreements and pending employee grievances; product warranty claims and violations of or obligations under Applicable Laws or otherwise, discharge all of the foregoing from the beginning of time, or in (B) any other manner be liable liabilities, obligations, debts or responsible for expenses of Solana or any Liabilities of Sellers its Affiliates arising under or relating to the Assigned Agreements, to the extent that are not Assumed Liabilities, whether existing such obligations arose on or prior to the Closing Date or arising thereafterDate, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) ). As between Solana on the one hand and La Jolla on the other hand, Solana shall be exclusively responsible for all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlExcluded Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (La Jolla Pharmaceutical Co)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarySection 2.3, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not assume or be obligated to pay, perform, perform or otherwise discharge or in any other manner be liable or responsible for any the following Liabilities of Sellers that are not Assumed Liabilities, whether existing on Seller (the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “"Excluded Liabilities”"):
(a) all costs and expenses incurred Any Liabilities of Seller in respect of any Excluded Assets or other assets of Seller which are not Purchased Assets, except to be incurred the extent caused by Sellers in connection with this Agreement and the consummation acts or omissions of Buyer or its Representatives or Buyer's ownership, lease, maintenance or operation of the TransactionsPurchased Assets;
(b) all Any Liabilities (i) related of Seller in respect of Taxes attributable to any current or former employee (including the Employees)Purchased Assets for taxable periods ending before the Closing Date, candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.23.5 or 6.5;
(c) Any Liabilities of Seller arising from the breach prior to the Closing Date by Seller of any of the Seller's Agreements;
(d) Any and all Liabilities to third parties for personal injury or tort, or similar causes of action to the extent arising out of the ownership, lease, maintenance or operation of the Purchased Assets prior to the Closing Date, other than the Liabilities assumed by Buyer under Section 2.3(c);
(e) all Liabilities to Any fines or penalties imposed by any broker, finder or agent or similar intermediary for Governmental Authority resulting from any broker’s fee, finders’ fee or similar fee or commission relating violation of law by Seller that occurred prior to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; andClosing Date;
(f) all Liabilities related to the Acquired Assets Any payment obligations of Seller or the Business arising from its Affiliates for goods delivered or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or services rendered prior to the Closing; provided that in Closing Date, other than the event of any conflict between Liabilities assumed by Buyer under Section 2.2 and this Section 2.3, Section 2.3 will control.2.3(c);
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Atlantic City Electric Co), Purchase and Sale Agreement (Delmarva Power & Light Co /De/)
Excluded Liabilities. Notwithstanding anything Except as expressly set forth in this Agreement to the contrarySection 1(a) above, Buyer (nor any of its Affiliates) Mentor shall not and does not hereby assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, defend or discharge any, and SiTech does and shall hereby solelyretain, pay, perform, defend and discharge, all of SiTech's liabilitiesand obligations of any and every kind whatsoever, whether disclosed, undisclosed, direct, indirect, absolute, contingent, secured, unsecured, accrued or otherwise, whether known or unknown, including but not limited to: (i) [Intentionally Omitted]; (ii) specifically excluding the tax obligations described in Section 1 (a)(iv) above, all income, withholding, or other taxes or fees resulting from the transfer of the Assets and Business or otherwise; (iii) any obligations or liabilities of SiTech to its employees, including but not limited to accrued but unpaid payroll, accrued obligations or liabilities under any employment or consulting agreements, employee's beneficial interests or options to purchase beneficial interests in SiTech, employee benefit plans or pension, profit-sharing or retirement plans or vacation arrangements; (iv) any obligations or liabilities under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"); (v) any liabilities or expenses of SiTech, including brokers', attorneys' and other professionals' fees incurred in negotiating, executing and completing SiTech's obligations under the Agreement: (vi) any obligations or liabilities relating to any products alleged to have been manufactured, or sold by SiTech and alleged to have been defective, improperly designed or manufactured or improperly labeled; and (vii) any obligations or liabilities arising under any Environmental Law (as defined in Section 3.15 of the Agreement) or any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following law (collectively, the “"Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees"), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 2 contracts
Samples: Option and Asset Purchase Agreement, Option and Asset Purchase Agreement (Mentor Corp /Mn/)
Excluded Liabilities. Notwithstanding anything in this Agreement Buyer shall not assume any liabilities, other than the Assumed Liabilities including, without limitation, the following:
(i) any obligation or liability for Tax of Parent or Seller or any member of any consolidated, affiliated, combined or unitary group of which Seller is or has been a member, including any Taxes arising from the operation of the Business or ownership of Purchased Assets on or prior to the contraryClosing Date; provided, Buyer (nor any of its Affiliates) shall not and does not assume, and however that Apportioned Obligations shall be deemed not paid in the manner set forth in Section 5.06;
(ii) any liabilities or obligations under any Employee Plans or Benefit Arrangements including, without limitation, bonus and accrued vacation for the Transferred Employees;
(iii) any liabilities arising prior to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date under Assumed Contracts included in the Purchased Assets except the deferred subscription liability set forth on Schedule 2.03, which shall be an Assumed Liability;
(iv) any liabilities or arising thereafter, including Liabilities obligations for continued health care coverage for any employees or other qualified beneficiaries under Code Section 4980B (“COBRA”) who have a qualifying COBRA event on or prior to the Closing Date;
(v) any liability or obligation relating to any action, suit, arbitration, investigation or arising out of proceeding pending against the Business or with respect to the Purchased Assets on or prior to the Closing Date; and
(vi) any of the following liability or obligation relating to an Excluded Asset. (collectively, the “Excluded LiabilitiesAssets”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Va Software Corp), Asset Purchase Agreement (Jupitermedia Corp)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Buyer (nor any of its Affiliates) Purchaser shall have no obligation and is not and does not assumeassuming, and the Company and/or VCGH shall be deemed not to have assumed and shall not be obligated to retain, pay, perform, discharge defend and discharge, all of the liabilities and obligations of every kind whatsoever related or in any other manner be liable connected to the Purchased Assets or responsible for any Liabilities the business of Sellers that are not Assumed LiabilitiesJaguar’s Gold Club arising or accruing prior to the Closing Date, whether existing disclosed or undisclosed, known or unknown on the Closing Date Date, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether liabilities for taxes, liabilities of creditors, liabilities arising thereafterunder any profit sharing, including Liabilities relating to pension or arising out of other benefit under any plan of the following Company, liabilities to any Governmental Agency (as hereinafter defined) or third parties, liabilities assumed or incurred by the Company by operation of law or otherwise (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities ), including, but not limited to, (i) related contractual liabilities arising from Jaguar’s Gold Club’s business or ownership of the Purchased Assets prior to any current or former employee (including the Employees)Closing Date, candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or and (ii) arising underany taxes owing by the Company and/or VCGH, in connection with including but not limited to (x) any ad valorem taxes, including real estate and personal property taxes, waste disposal assessments or in other assessments for public or municipal improvements that are assessed or imposed pursuant to the Old Lease Agreement and (y) amounts accessed under the Texas Patron Tax, occurring before Closing, or whether related to the business of Jaguar’s Gold Club, the Purchased Assets or otherwise and any way liens on the Purchased Assets relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlsuch taxes.
Appears in 2 contracts
Samples: Asset Purchase Agreement (VCG Holding Corp), Asset Purchase Agreement (Ricks Cabaret International Inc)
Excluded Liabilities. Notwithstanding anything Except as expressly set forth above in this Agreement to the contrarySection 2.2, Buyer (nor is not assuming any of its Affiliates) shall not and does not assumeliabilities or obligations of, or related to, Seller, the Assets, ERF Wireless, Inc., the Excluded Businesses or the Business, and shall be deemed not Seller agrees to have pay and discharge all such non-assumed liabilities and shall not be obligated to payobligations as and when the same become due and payable. Without limiting the generality of the foregoing, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not than the Assumed Liabilities, whether existing on the Closing Date in no event shall Buyer assume or arising thereafter, including Liabilities relating to incur any liability or arising out obligation under Section 2.2 or Section 2.3 or otherwise in respect of any of the following (collectively, the “Excluded Liabilities”):following:
(a) all costs and expenses incurred Any liability or obligation under any Contract arising or accruing or relating to be incurred by Sellers in connection with this Agreement and any period prior to the consummation of Closing Date, whether related to the TransactionsAssets or otherwise;
(b) all Liabilities (i) Any indebtedness for borrowed money, whether related to any current the Assets or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessotherwise;
(c) except as provided under Section 2.2(d)Any breach of contract, all Liabilities arising product liability or similar claim, regardless of when made or asserted, which arises out of, relating or is based upon, any express or implied representation, warranty, agreement or guarantee made by Seller or alleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law, to the extent in connection with respect any service performed or product designed, sold, or leased by or on behalf of Seller on or prior to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthe Closing Date;
(d) all Liabilities any federal, state or local income or other Tax (i) payable with respect to the Business, Assets, properties or operations of Seller for any and all Taxes of Sellers period prior to the Closing Date, or (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (ii) incident to or any similar provision of state, local or foreign Law), arising as a transferee or successor, consequence of the consummation by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Seller of this Agreement and the transactions contemplated hereby;
(e) all Liabilities any liability or obligation to any brokeremployees, finder agents or agent independent contractors of Seller or similar intermediary for under any brokerbenefit arrangement with respect thereto;
(f) any customer claims, charge-backs, or related liability or obligations that are outside of those incurred in the Seller’s feeOrdinary Course of Business, finders’ fee and are attributable to periods and arising from sales of goods or similar fee or commission relating services occurring prior to the transactions contemplated Closing Date provided however that product returns in the Ordinary Course of Business consistent with past practice of Seller shall be assumed by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblethe Buyer; and
(fg) all Liabilities related to the Acquired Assets any liability or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence obligation of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent Seller arising or attributable to any period on or prior to incurred in connection with the Closing; provided that in negotiation, preparation and execution of this Agreement and the event transactions contemplated hereby and fees and expenses of any conflict between Section 2.2 counsel, accountants and this Section 2.3, Section 2.3 will controlother experts.
Appears in 2 contracts
Samples: Asset Purchase Agreement (ERF Wireless, Inc.), Asset Purchase and Sale Agreement (KeyOn Communications Holdings Inc.)
Excluded Liabilities. Notwithstanding anything in this Agreement contained herein to the contrary, Buyer (nor any of its Affiliates) Assignee shall not and does not assume, and shall or cause to be assumed, or be deemed not to have assumed and shall not be obligated or caused to pay, perform, discharge have assumed or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilitiesliabilities or obligations (whether known or unknown, whether fixed, absolute, matured, unmatured, accrued or contingent, now existing on the Closing Date or arising thereafterafter the date hereof), including other than the Assumed Liabilities relating to or arising out of any of the following (collectivelysuch liabilities and obligations not assumed, the “Excluded Liabilities”):
). For the avoidance of doubt, Excluded Liabilities (ax) all costs and expenses incurred or shall include but not be limited to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) any claims by Hired Employees arising from their employment with any Brand Company prior to the Closing Date, (ii) any liabilities and obligations of any Brand Company that do not arise from and are not related to any current Assigned Asset, (iii) Excluded Taxes, (iv) any liabilities and obligations of any Brand Company to the extent based upon a theory of successor liability, including any successor liability claims with respect to employees of the Brand Companies (provided, that this clause (iv) shall not apply in any respect to Assignee’s assumption of the Assumed Liabilities), (v) any liabilities and obligations under any agreement, contract or license relating to any event occurring prior to Closing and (vi) any claims by, liabilities or obligations to any employee or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired AssetsBrand Companies, other than Hired Employees, under the federal Worker Adjustment and Retraining Notification Act of 1988, as amended, or under any state or local plant closing or mass layoff law, (y) but, notwithstanding the foregoing clause (x), shall exclude any liabilities and obligations assumed by Assignee pursuant to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlGaiam-FFL APA.
Appears in 2 contracts
Samples: Assignment and Assumption Agreement, Assignment and Assumption Agreement (Sequential Brands Group, Inc.)
Excluded Liabilities. Notwithstanding anything in this Agreement to All of the contrary, Buyer (nor any of its Affiliates) shall not KemPharm Parties’ liabilities and does not assume, and obligations other than the Assumed Liabilities shall be deemed retained by and remain liabilities and obligations of the KemPharm Parties (the “Excluded Liabilities”), including, but not to have assumed and shall not be obligated to paylimited to, perform, discharge the following:
(a) Any liabilities or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities obligations relating to or arising out of Contracts to which any of the following (collectivelyKemPharm Parties is a party or otherwise has assumed any obligation, included in the “Excluded Liabilities”):
(a) all costs and expenses incurred Acquired Assets relating to or to be incurred by Sellers in connection with this Agreement and the consummation arising out of the Transactions;
(b) all Liabilities (i) related any breach of such Contracts occurring on or prior to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller Closing or (ii) any violation of law, breach of warranty, tort or infringement occurring or arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing, or any Action or demand related to facts, events or circumstances occurring on or prior to the Closing;
(b) Any liabilities or obligations of the KemPharm Parties under this Agreement or the other Settlement Documents or the transactions contemplated hereby or thereby;
(c) Any liabilities or obligations of the KemPharm Parties to indemnify, reimburse or advance amounts to any officer, director, employee or agent of the KemPharm Parties;
(d) Any liabilities or obligations relating to an Excluded Asset; provided that in the event and
(e) All liabilities and obligations of any conflict between Section 2.2 and this Section 2.3kind, Section 2.3 will controlcharacter or description (whether known or unknown, accrued, absolute, fixed, contingent, matured or unmatured, arising by law or by contract or otherwise) to the extent relating to or arising from the Acquired Assets before the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Kempharm, Inc), Asset Purchase Agreement (Kempharm, Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contraryExcluded Liabilities shall include, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectivelywithout limitation, the “Excluded Liabilities”):following:
(a) all costs and expenses incurred liabilities arising from the use, deployment, purchase, license, operation or to be incurred by Sellers maintenance of Appliques under the Globalstar Contracts (presently existing or in connection with this Agreement and the consummation of the Transactionsfuture incurred);
(b) all Liabilities (i) related liabilities arising from Seller’s breaches, defaults or failures of performance under the Globalstar Contracts, prior to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessClosing Date;
(c) except as provided under Section 2.2(d), all Liabilities any liabilities for Taxes incurred or accrued by Seller arising out of, relating to from or with respect to (i) the operation of Seller’s business, (ii) the Purchased Assets or Assumed Liabilities which were incurred in, accrued through or attributable to any and all Employeesperiod prior to the Closing Date, and contractors (iii) any Taxes as a result of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthis transaction, including payroll, sales and income;
(d) all Liabilities for any litigation or disputes pending or threatened against Seller or Parent or its owners or management; and all Taxes any warranty liability to customers arising out of Sellers (including any Liability of Sellers for events occurring on or before the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (Closing Date, except as such warranty liability relates to the Purchased Assets or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2the Assumed Liabilities;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to debt obligations and accrued interest thereon of the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleSeller; andor
(f) all Liabilities any liabilities not related to the Acquired Purchased Assets or the Business arising from or Assumed Liabilities and liabilities related to any Environmental, Health, and Safety Laws the Purchased Assets or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or Assumed Liabilities incurred prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlunless otherwise stated herein.
Appears in 2 contracts
Samples: Asset Purchase Agreement (World Surveillance Group Inc.), Asset Purchase Agreement (Great West Resources, Inc.)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, It is understood and agreed that Buyer (nor any of its Affiliates) shall not assume or be liable for (1) any contingent debts, obligations, or liabilities of Seller of any kind and does nature whatsoever with respect to actions prior to or after the Closing Date, other than the Contracts, including, but not assumelimited to, and shall be deemed not any losses or liabilities due to have assumed and shall not be obligated to payor arising from forgery, performfraud, discharge defalcation, or in any other manner be liable improper act or responsible omission, any tax or debt, any liability for unfair labor practices (such as wrongful termination or employment discrimination), any Liabilities liability or obligation of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or Seller arising out of any threatened or pending litigation including without limitation the litigation described in the Seller's Disclosure Schedule, any liability with respect to personal injury or property damage claims, and any liability arising under Environmental Laws with respect to the Excluded Assets, (2) any expenses and liabilities of Seller resulting from the following negotiation or consummation of this Agreement or the Transactions, including, without limitation, fees and expenses of counsel, accountants, investment bankers and any printing, proxy solicitation or mailing expenses relating to the Proxy Statement (as defined in Section 7.03 hereof), (3) any liabilities of Seller for federal, state, county or local income taxes on the Purchase Price, (4) any obligations of Seller or the Sobieski ESOP to Sobieski which obligations total $193,200 as of March 31, 2004, (5) any debt, liability or obligation of Seller arising after the Closing Date (other than those relating to the Liabilities), including any liabilities that may relate to actions of Seller prior to the Closing Date, or (6) any liability or obligation under the Excluded Contracts (collectively, the “"Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees"), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (Sobieski Bancorp Inc), Purchase and Assumption Agreement (MFB Corp)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not assume or be obligated to pay, perform, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not other than Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, all such Liabilities being herein called the “Excluded Liabilities”):) and, notwithstanding anything to the contrary in Section 2.3, none of the following shall be Assumed Liabilities for purposes of this Agreement:
(a) all costs and expenses incurred any Liabilities for Taxes of Parent or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee Seller (including the Employeesthose for which Seller is liable pursuant to Section 8.3), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for those Taxes for which Buyer is liable pursuant to Section 2.2Sections 2.3 or 8.3;
(b) any payables and other Liabilities or obligations of the Division to any other business unit of Parent, Seller or any of Parent’s or Seller’s Affiliates;
(c) any costs and expenses incurred by Seller incident to its negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein;
(d) any Liabilities or obligations in respect of any Excluded Assets;
(e) all any Liabilities to in respect of the lawsuits, claims, suits, proceedings or investigations set forth in Disclosure Letter Schedule 5.16;
(f) any broker, finder Liabilities or agent obligations arising out of or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating resulting from non-compliance prior to the transactions contemplated Closing with any Requirements of Law by this Agreement for which any Parent, Seller or its Subsidiaries their Affiliates;
(g) any Liabilities for accounts payable by Parent or Affiliates are responsibleSeller; and
(fh) all any Liabilities for employment-related obligations relating to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or Division incurred prior to the Closing; provided that in , except for Liabilities with respect to the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlEmployees for the employment arrangements entered into with Buyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Gleacher & Company, Inc.), Asset Purchase Agreement (First Albany Companies Inc)
Excluded Liabilities. Notwithstanding anything Except as expressly set forth in this Agreement to Section 1(g), the contrary, Buyer (nor any of its Affiliates) shall not assume or be responsible at any time for any liability, obligation, debt or commitment of the Sellers, whether absolute or contingent, accrued or unaccrued, asserted or unasserted, or otherwise (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Sellers and does not assumeShareholders expressly acknowledge and agree that the Sellers shall retain, and shall be deemed not to have assumed and that Buyer shall not assume or otherwise be obligated to pay, perform, discharge defend or in discharge, any other manner be liable liability or responsible for any Liabilities of Sellers that are not Assumed Liabilitiesobligation:
(A) incident to, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectivelyor incurred with respect to, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation transactions contemplated hereby (including any and legal or other fees and expenses, all sales, income or other taxes arising out of the Transactionstransactions contemplated hereby; without limiting the generality of the foregoing, the Sellers shall promptly file an application for a Waiver of Tax Lien under the Massachusetts General Law, Chapter 62C §§ 51 and 52, with the Massachusetts Department of Revenue (“Waiver of Tax Lien”) and shall remit any and all sales taxes due in respect of the sale of assets contemplated in this transaction to be paid by Sellers at Closing);
(bB) all Liabilities for taxes whether measured by income or otherwise;
(iC) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with any Plan or Benefit Program or Agreement (as defined in Section8(k)), including, without limitation, any way liability of the Sellers under ERISA;
(D) under any foreign, federal, state or local law, rule, regulation, ordinance, program, Permit, or other Legal Requirement relating to health, safety, Hazardous Materials and environmental matters applicable to the Sellers’ business and/or the facilities Used by the Sellers (whether or not owned by the Sellers);
(E) pertaining to products sold or manufactured or services performed or other actions taken or omitted by the Sellers prior to the Closing Date;
(F) relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or default taking place before the Closing Date under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, Assumed Obligations to the extent arising such default created or attributable increased the liability or obligation; or
(G) the consulting agreement by and between Management and Xxxxxxx X. Xxxxxx, dated April 6, 2004.
(H) Sellers and the Majority Shareholders jointly and severally agree to any period on or prior to satisfy and discharge the Closing; provided that in Excluded Liabilities as the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlsame shall become due.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Colonial Commercial Corp), Asset Purchase Agreement (Colony Bankcorp Inc)
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Buyer (nor any of its Affiliates) Purchaser shall have no obligation and is not and does not assumeassuming, and the Company and/or VCGH shall be deemed not to have assumed and shall not be obligated to retain, pay, perform, discharge defend and discharge, all of the liabilities and obligations of every kind whatsoever related or in any other manner be liable connected to the Purchased Assets or responsible for any Liabilities the business of Sellers that are not Assumed LiabilitiesSchiek’s Palace arising or accruing prior to the Closing Date, whether existing disclosed or undisclosed, known or unknown on the Closing Date Date, direct or indirect, absolute or contingent, secured or unsecured, liquidated or unliquidated, accrued or otherwise, whether liabilities for taxes, liabilities of creditors, liabilities arising thereafterunder any profit sharing, including Liabilities relating to pension or arising out of other benefit under any plan of the following Company, liabilities to any Governmental Agency (as hereinafter defined) or third parties, liabilities assumed or incurred by the Company by operation of law or otherwise (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities ), including, but not limited to, (i) related contractual liabilities arising from Schiek’s Palace’s business or ownership of the Purchased Assets prior to any current or former employee (including the Employees)Closing Date, candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or and (ii) arising underany taxes owing by the Company and/or VCGH, in connection with including but not limited to (x) any ad valorem taxes, including real estate and personal property taxes, waste disposal assessments or in other assessments for public or municipal improvements that are assessed or imposed pursuant to the Lease Agreement and (y) any way other taxes, whether related to the business of Schiek’s Palace, the Purchased Assets or otherwise and any liens on the Purchased Assets relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlsuch taxes.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Ricks Cabaret International Inc), Asset Purchase Agreement (VCG Holding Corp)
Excluded Liabilities. Notwithstanding anything Seller shall be solely liable for all liabilities and obligations to the extent arising from, or to the extent arising in connection with, ownership of the Purchased Assets or to the operation of the Business prior to the Closing Date, whether or not reflected on its books and records. Neither Buyer nor its Affiliates will assume by virtue of this Agreement to or the contrary, Buyer (nor any of its Affiliates) shall not and does not assumetransactions contemplated hereby or otherwise, and will have no liability for, any obligations and liabilities of (and Seller and its Affiliates and their respective direct or indirect subsidiaries shall be deemed not to have assumed retain and shall not be remain solely liable for and obligated to paydischarge), performall of their debts, discharge or in contracts, agreements, commitments, obligations and other liabilities of any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilitiesnature whatsoever, whether existing on the Closing Date known or arising thereafterunknown, including Liabilities relating to accrued or arising out of any of the following not accrued, fixed or contingent, not expressly assumed by Buyer in writing (collectively, all such liabilities and obligations not being assumed being herein called the “Excluded Liabilities”):), incurred or arising prior to the Closing Date, including without limitation, the following:
(a) all costs Any liability for breaches of any and expenses incurred every contract or any other instrument, or purchase order or any liability for payments or amounts due under any contract, agreement, lease, license, commitment or any other instrument, contract, document or purchase order to be incurred by Sellers in connection with the extent related to the Business excluding however, this Agreement and all other contracts or instruments entered into among the consummation of the Transactions;
(b) all Liabilities (i) Parties related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement or resulting from any breach of any such contract or other instrument by Buyer or its Affiliates;
(b) Any liability or obligation for which Taxes attributable for any period, or attributable to or imposed upon the Client Accounts for any period (or portion thereof) through the Closing Date, including, without limitation, any Taxes attributable to Seller or its Subsidiaries Affiliates or arising from the transactions contemplated by this Agreement;
(c) Any liability or obligation for or in respect of any loan, other indebtedness for money borrowed, or account payable including any such liabilities owed to Affiliates are responsibleof Seller;
(d) 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 by or on behalf of Seller or any and all of its Affiliates and their respective direct or indirect subsidiaries, including, without limitation, any liability for violations of federal or state securities or other Laws;
(e) Any liability or obligations to the extent relating to Seller’s agreements with Registered Representatives;
(f) Any liability or obligation arising out of any “employee benefit plan,” as such term is defined by ERISA or related to other Plans of Seller or its Affiliates;
(g) Any liability or obligation for making payments of any kind (including as a result of the affiliation of Registered Representatives or as a result of the termination of employment of employees, or other claims arising out of the terms and conditions of employment, or for vacation or severance pay or otherwise) to employees of Seller, its Affiliates and their respective direct and indirect subsidiaries, or in respect of payroll taxes for employees of Seller, its Affiliates and their respective direct and indirect subsidiaries;
(h) Any liability or obligation for making payments of any kind with respect to the Client Accounts, whether to customers or other third parties, where such liability or obligation was incurred or arose prior to the Closing Date;
(i) Any liabilities or obligations in respect of any Excluded Assets; and
(fj) all Liabilities Any liability or obligation of Seller incurred in connection with the making or performance of this Agreement and the transactions contemplated hereby including, but not limited to, any liability or obligation related to the Acquired Assets or the Business arising failure to secure any necessary authorizations from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlGovernmental Entity.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Siebert Financial Corp), Asset Purchase Agreement (Siebert Financial Corp)
Excluded Liabilities. Notwithstanding anything in this Agreement to Except for the contraryAssumed Liabilities, Buyer (nor any of its Affiliates) Seller shall not retain and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or solely responsible for any Liabilities and all liabilities, costs and obligations of Sellers that are not Assumed LiabilitiesSeller of any kind or nature, whether existing on the Closing Date known, unknown, contingent or arising thereafter, including Liabilities relating to or arising out of any of the following otherwise (collectively, the “Excluded Liabilities”):), and Seller shall not transfer to Buyer, and Buyer shall not assume or be liable for, any such obligation, cost or liability of Seller, including without limitation:
(a) all costs and expenses any liability of Seller incurred or to be incurred by Sellers in connection with or as a result of the negotiation and execution of this Agreement and the consummation transactions provided for herein, including brokerage, accounting and counsel fees, transfer and other taxes, and expenses pertaining to the cessation of the TransactionsSeller’s business activities;
(b) all Liabilities (i) related any debt, liability or obligation of Seller arising prior to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor Closing out of the BusinessPurchased Assets;
(c) except as provided any debt, liability or obligation under Section 2.2(d), all Liabilities arising the Assigned Contract that (i) arises prior to the Closing or (ii) arises after the Closing but arises out of, relating of or results from a breach by Seller that occurred prior to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before upon the Closing;
(d) all Liabilities any of Seller’s obligations, costs or liabilities to Seller’s current or former employees, including without limitation any salaries, wages, bonuses, accrued unused paid time off, severance, expense reimbursements, benefits, pension, retirement, or profit-sharing plan or trust, unemployment benefits and workers’ compensation obligations;
(e) any liability for any and all Taxes of Sellers (including Seller or any Liability of Sellers for the Taxes of any person other Person than Seller under Treasury Regulations Reg. Section 1.1502-6 (or any similar provision of state, local or foreign Lawlaw), as a transferee or successor, by Contract contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission whether relating to periods before or after the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleClosing Date; and
(f) all Liabilities related any obligations of Seller under any law or regulation, including but not limited to the Acquired Assets or the Business arising from or related to any Environmentalantitrust, Healthcivil rights, health, safety, labor, discrimination, information privacy and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlenvironmental laws.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Targeted Genetics Corp /Wa/), Asset Purchase Agreement (Targeted Genetics Corp /Wa/)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Seller or any Affiliate of Seller (nor or any predecessor owner of all or part of its Affiliatesbusiness and assets) shall not of whatever nature whether presently in existence or arising or asserted hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of Seller or its Affiliates (all such liabilities and obligations not being assumed being herein referred to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, as the “Excluded Liabilities”):). Without limiting the foregoing, none of the following shall be Assumed Liabilities for the purposes of this Agreement:
(a) Any and all costs liabilities and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation obligations of Seller for Taxes, (including any Taxes that arise as a result of the Transactionstransactions contemplated by this Agreement), except as provided for by Section 8.03(c);
(b) all Liabilities (i) related except to any current or former employee (including the Employeesextent provided in Article VIII and Section 2.03(c), candidate for employment, officer, director, consultant, any liabilities or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way obligations relating to employee benefits or compensation arrangements existing as of the end of the day on the day immediately preceding the Closing Date, including, without limitation, any Benefit Plan and any other compensation liabilities or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by obligations under any of SellersSeller’s employee benefit agreements, any of their Subsidiaries plans or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including other arrangements listed on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessSchedule 9.02;
(c) except as any claims for refunds based on any warranty, express or implied, for products or services provided under Section 2.2(d), all Liabilities arising out of, relating to the extent not reserved therefor on the Balance Sheet or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingnot properly accrued since the Balance Sheet Date;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2environmental liabilities;
(e) all Liabilities any amounts owing to Benefactor Funding Corp.;
(f) any broker, finder liability or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligation relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblean Excluded Asset; and
(fg) all Liabilities related any liability or obligation relating to the Acquired Assets or the Business arising from or related to under any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlExcluded Contract.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Datawatch Corp), Asset Purchase Agreement (ClearStory Systems, Inc.)
Excluded Liabilities. Notwithstanding anything Except as provided in this Agreement to the contraryAssignment and Assumption Agreement, Buyer (nor any of its Affiliates) Mentor shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, defend or discharge any, and SiTech shall solely retain, pay, perform, defend and discharge, all of SiTech's liabilities and obligations of any and every kind whatsoever, whether disclosed, undisclosed, direct, indirect, absolute, contingent, secured, unsecured, accrued or otherwise, whether known or unknown, including but not limited to: (i) [Intentionally Omitted]; (ii) specifically excluding the tax obligations described in Section 1.4(a)(iv) above, all income, withholding, or other taxes or fees resulting from the transfer of the Assets and Business or otherwise; (iii) any obligations or liabilities of SiTech to is employees, including but not limited to accrued but unpaid payroll, accrued obligations or liabilities under any employment or consulting agreements, employee's beneficial interests or options to purchase beneficial interests in SiTech, employee benefit plans or person, profit-sharing or retirement plans or vacation arrangements; (iv) any obligations or liabilities under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"); (v) any liabilities or expenses of SiTech, including brokers', attorneys' and other professionals' fees incurred in negotiating, executing and completing SiTech's obligations under this Agreement; (vi) any obligations or liabilities relating to any products alleged to have been manufactured, or sold by SiTech and alleged to have been defective, improperly designed or manufactured or improperly labeled; and (vii) any obligations or liabilities arising under any Environmental Law (as defined in Section 3.5 below) or any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following law (collectively, the “"Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees"), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 2 contracts
Samples: Option and Asset Purchase Agreement, Option and Asset Purchase Agreement (Mentor Corp /Mn/)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) The Purchaser shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for assume any Liabilities of Sellers that are not Assumed Liabilitiesthe Seller or its Affiliates of any nature whatsoever, whether presently existing on the Closing Date or arising thereafterbefore or after any of the Closings, including Liabilities relating to or arising out of any of the following Liabilities (collectively, the “Excluded Liabilities”):), which Liabilities shall be retained by and remain obligations of the Seller to be satisfied and discharged by the Seller or its Affiliates in accordance with their respective terms; provided however, for the avoidance of doubt Excluded Liabilities shall not include any Liabilities of the Purchaser and its Affiliates to the extent arising as a result of the Purchaser’s and its Affiliates’ operation of the Business following the applicable Closing:
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation any Liabilities of the TransactionsSeller or any of its Affiliates to the extent relating to the Excluded Assets;
(b) all Liabilities (i) related to any current or former employee (including the Employees)Liabilities, candidate for employment, officer, director, consultant, or contractor obligations and expenses of any kind or nature relating to Taxes of the Seller and, with respect to the Transferred Assets, for any period ending on or of before the applicable Closing Date and any Subsidiary or Affiliate of any Taxes imposed on Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to the transaction contemplated by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessthis Agreement;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before ClosingExcluded Employee Liabilities;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;Decommissioning Liabilities; and
(e) all product liability actions and/or recall Liabilities with respect to any broker, finder nutritional bars manufactured or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated sold by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related prior to the Acquired Assets applicable Closing; but for the avoidance of doubt any such actions or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any Liabilities of the Acquired Assets, Purchaser or its Affiliates to the extent arising or attributable to any period on or prior to as a result of their operation of the Closing; provided that in Business following the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlapplicable Closing are not Excluded Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Alphabet Holding Company, Inc.), Asset Purchase Agreement (Nbty Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary contained in SECTION 1.3 above, the Buyer (nor any of its Affiliates) shall not and does not assume, or become in any way liable for, the payment or performance of any debts, liabilities or obligations (absolute or contingent) of the Sellers (a) in the nature of customer claims, employee claims or other contingent liabilities arising out of or relating to any operations of the Sellers prior to the date hereof, except to the extent specifically assumed pursuant to SECTION 1.3 above, (b) relating to any lease obligations of any kind other than obligations for periods on and shall after the date hereof under the Real Estate Lease, (c) under or relating to any lien or other arrangement under which the Sellers are or may be deemed not borrowers, (d) except to have the extent assumed and shall not be obligated pursuant to paySECTION 1.3(b) above, performrelating to any federal, discharge state or local income, franchise, sales, use, property, excise, transfer or other taxes payable by or in any other manner be liable or responsible for any Liabilities respect of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafterSellers, including Liabilities but not limited to any such taxes which may be assessable against the Sellers arising out of, in connection with or as a result of the transactions contemplated by this Agreement and/or the consummation thereof, (f) relating to or arising out of any pending claims, actions, arbitrations and/or other proceedings against the Sellers, (g) relating to recapture of any depreciation deduction or investment tax credit of the following Sellers, (collectively, h) under or in respect of any benefit plans now or heretofore maintained by the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and respect of or for the consummation benefit of the Transactions;
(b) all Liabilities any of its employees, or (i) related to any current or former employee (including not specifically assumed by the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, Buyer in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlSECTION 1.3 above.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Smart Choice Automotive Group Inc), Asset Purchase Agreement (Smart Choice Automotive Group Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary contained herein, Buyer (nor any of its Affiliates) the Purchaser shall not and does assume, or in any way be liable or responsible for, any liabilities, commitments, or obligations of the Sellers except for the Assumed Liabilities. Without limiting the generality of the foregoing, the Purchaser shall not assume, and the Sellers shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or remain responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “"Excluded Liabilities”"):
(a) all costs and expenses incurred subject to Section 1.3(a), any liabilities or obligations (whether absolute, contingent, or otherwise) which accrue with respect to, arising out of, or related to, the Assets on or prior to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities Closing Date, including, without limitation, (i) related to any current liability or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor obligation of any Seller or any of any Subsidiary its employees, directors, officers, affiliates, or Affiliate agents arising out of, relating to, or caused by (whether directly or indirectly), the Sellers' ownership, possession, interest in, use or control of any Seller or the Assets and (ii) arising under, in connection with any liability or in obligation described on Section 1.4 of the Seller Disclosure Letter; (b) any way relating to liability or obligation of the Sellers for any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements Taxes of any kind (including all assetsaccrued for, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed applicable to or required arising from any period (or portion thereof) ending on or prior to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liabilitythe Closing Date, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor Transfer Taxes to the extent not exempt pursuant to section 1146 of the Business;
Bankruptcy Code; and (c) except as provided under in Section 2.2(d), all Liabilities arising out of, relating to or 5.13(e) with respect to COBRA, any and all Employees, and contractors of Sellers liability or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes obligation in respect of any other Person under Treasury Regulations Section 1.1502-6 (agreement, plan or policy relating to employees or employment matters, including, without limitation, any similar provision of stateSeller Plan, local or foreign Law)consulting, as a transferee or successorseverance, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent change in control or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlagreements.
Appears in 2 contracts
Samples: Asset Purchase Agreement (GST Telecommunications Inc), Asset Purchase Agreement (Time Warner Telecom Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary set forth herein, Buyer (nor any of its Affiliates) shall not and does not assumethe Sellers will remain liable with respect to, and shall Purchaser will not assume and will be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectivelyassumed, the Excluded Liabilities. “Excluded Liabilities”):
(a) ” means any and all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation Liabilities of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities Sellers arising out of, relating to or with otherwise in respect to any of the operation of the Purchased Assets and the Business before the Closing Date, other than such Liabilities that specifically are included as Assumed Liabilities, including (i) all EmployeesLiabilities of the Sellers arising from the Transactions, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(dii) all Liabilities for any (A) Income Taxes and all (B) Non-Income Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable that are allocated to Seller pursuant to Section 2.2;
10.4(a), (eiii) all Liabilities to any brokerobligations under any employee benefit plans, finder or agent or similar intermediary for including retiree healthcare, and (iv) any broker’s fee, finders’ fee or similar fee or commission relating other Liability with respect to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Purchased Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired AssetsBusiness, to the extent arising out of or attributable related to events occurring prior to Closing, including any such Liability or obligation (A) pursuant to any period on express or implied representation, warranty, agreement, coal specification undertaking or guarantee made by any Seller or any Affiliate of such Seller, or alleged to have been made by Seller or any Affiliate of such Seller, (B) imposed or asserted to be imposed by operation of applicable Law, (C) arising pursuant to the WARN Act; or (D) pursuant to any doctrine of product liability, in each case to the extent arising out of or related to events occurring prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this -------------------- Agreement or any other writing or commitment (written or oral) to the contrary, Buyer ACI is not assuming any debt, liability or obligation of the Seller (nor or any predecessors of the Seller or any prior owners of all or part of its businesses and assets) of whatever nature, whether presently in existence or arising hereafter, other than the assumption by ACI of the Assumed Liabilities. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of the Seller (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Notwithstanding anything to the contrary in Section 2.03, none of the following ------------ shall be Assumed Liabilities for the purposes of this Agreement:
(a) any intercompany payables or other liabilities or obligations of the Seller to any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of SellersSeller's Employee Liabilities, any of their Subsidiaries liability or Affiliates, or any ERISA Affiliate or obligation under or with respect to which any Seller Employee Plan or Benefit Arrangement, or any Subsidiary other liability or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor obligation related to employees of the BusinessSeller, whether written or oral;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to any liability or with respect to obligation for Designated Chapter 11 Costs and any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingcontracts related thereto;
(d) all Liabilities any liability or obligation for any and all Taxes of Sellers indebtedness for borrowed money or evidenced by bonds or notes (including accrued interest and fees with respect thereto);
(e) any Liability liability in respect of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer the Seller is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible14.03(a)(i); and
------------------- (f) all Liabilities related any liability or obligation relating to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.an Excluded Asset;
Appears in 1 contract
Samples: Asset Purchase Agreement (Avery Communications Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarySection 2.3, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not assume or be obligated to pay, perform, perform or otherwise discharge or in any other manner be liable or responsible for any the following Liabilities of Sellers that are not Assumed Liabilities, whether existing on Seller (the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “"Excluded Liabilities”"):
(a) all costs and expenses incurred Any Liabilities of Seller in respect of any Excluded Assets or other assets of Seller which are not Purchased Assets, except to be incurred the extent caused by Sellers in connection with this Agreement and the consummation acts or omissions of Buyer or its Representatives or Buyer's ownership, lease, maintenance or operation of the TransactionsPurchased Assets;
(b) all Any Liabilities (i) related of Seller in respect of Taxes attributable to any current or former employee (including the Employees)Purchased Assets for taxable periods ending before the Closing Date, candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.23.5 or 6.6;
(c) Any Liabilities of Seller arising from the breach prior to the Closing Date by Seller of any of the Seller's Agreements;
(d) Any and all Liabilities to third parties for personal injury or tort, or similar causes of action to the extent arising out of the ownership, lease, maintenance or operation of the Purchased Assets prior to the Closing Date, other than the Liabilities assumed by Buyer under Section 2.3(d);
(e) all Liabilities to Any fines or penalties imposed by any broker, finder or agent or similar intermediary for Governmental Authority resulting from any broker’s fee, finders’ fee or similar fee or commission relating violation of law by Seller that occurred prior to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; andClosing Date;
(f) all Liabilities related to the Acquired Assets Any payment obligations of Seller or the Business arising from its Affiliates for goods delivered or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or services rendered prior to the Closing; provided that in Closing Date, other than the event of any conflict between Liabilities assumed by Buyer under Section 2.2 and this Section 2.3, Section 2.3 will control.2.3(d);
Appears in 1 contract
Samples: Purchase and Sale Agreement (Delmarva Power & Light Co /De/)
Excluded Liabilities. Notwithstanding anything in this Agreement Purchaser shall not assume or become liable for any obligations, commitments, or liabilities of Seller, whether known or unknown, absolute, contingent, or otherwise, and whether or not related to the contraryAcquired Assets, Buyer except for the Assumed Liabilities (nor any the obligations and liabilities of its Affiliates) shall Seller not assumed by Purchaser are hereinafter referred to as the "Excluded Liabilities"). Without limiting the generality of the preceding sentence, the Excluded Liabilities include all obligations and does liabilities of Seller not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or specifically described in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafterSection 2.1 hereof, including Liabilities relating to or without limitation, the following:
(a) All liabilities arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the TransactionsEmployee Benefit Plan;
(b) all Liabilities (i) related to any current or former employee Any losses, costs, expenses, damages, claims, demands and judgments of every kind and nature (including the Employees)defenses thereof and reasonable attorneys' and other professional fees) related to, candidate for employment, officer, director, consultantarising out of, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with Seller's failure to comply with the Bulk Transfer Act or any similar statute as enacted in any way relating to any Benefit Plan and any other compensation jurisdiction, domestic or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessforeign;
(c) except as provided Any liability or obligation arising or accruing under Section 2.2(d), all Liabilities arising out of, relating any Contract prior to or with respect to any and all Employeesthe Effective Time, and contractors of Sellers any liability or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business obligation arising from or related to any Environmental, Health, and Safety Laws breach or the presence violation by Seller of or release of, or exposure to, default by Seller under any Hazardous Substance at, on, under, or migrating provision of any Contract prior to the Effective Time;
(d) Any liability of Seller with respect to any claim or cause of the Acquired Assetsaction, regardless of when made or asserted, to the extent arising that it arises (i) out of or attributable to any period on or in connection with the operations of Seller prior to the Effective Time and which is not specifically described in Section 2.1 hereof, or (ii) with respect to any product sold or manufactured or any service provided by Seller prior to the Effective Time, including, without limitation, any liability or obligation (A) pursuant to any express or implied representation, warranty, agreement or guarantee made by Seller or (B) imposed or asserted to be imposed by operation of law, in connection with any service performed or product designed, manufactured, sold, or leased by or on behalf of Seller prior to the Effective Time, including, without limitation, any claim related to any product delivered in connection with the performance of such service and any claims seeking to recover for consequential damage, lost revenue or income, including pursuant to any doctrine of product liability;
(e) Any liabilities or obligations of Seller relating to the Excluded Assets;
(f) [INTENTIONALLY OMITTED];
(g) Any liability or obligation (including, without limitation, salaries, wages (including, without limitation, overtime pay and premium pay), bonus, vacation pay, sick pay, disability pay, holiday pay, severance pay and other like obligations or payments), arising prior to or as a result of the Closing; provided that in , to any present or former employee, agent, or independent contractor of Seller, whether or not employed or retained by Purchaser after the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.Closing;
(h) All Environmental Liabilities (as hereinafter defined);
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, The Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge assume or in any other manner way be liable or responsible for any Liabilities of the Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following their respective Affiliates other than those constituting Assumed Liabilities (collectivelysuch liabilities, the “Excluded Liabilities”):), including:
(a) all costs and expenses incurred Liabilities to the extent resulting from, arising out of or relating to be incurred by Sellers in connection with this Agreement and the consummation of the TransactionsExcluded Assets;
(b) all Liabilities (i) related for which the Sellers are expressly made responsible pursuant to any current this Agreement or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessTransaction Document;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before ClosingIntercompany Account payable;
(d) all Liabilities for any to the extent resulting from, arising out of or relating to the conduct and all Taxes operations of the business of Sellers and their Affiliates (excluding the Sold Companies, the Sold Subsidiaries and/or the Business) before and following the Closing, including with respect to any Liability of Sellers equity awards, but excluding any Liabilities for which the Taxes of Buyer is expressly made responsible pursuant to this Agreement or any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;Transaction Document; and
(e) any Liabilities for Taxes attributable to or imposed upon any Seller or any of their respective Affiliates (or for which any Seller or any of their respective Affiliates may otherwise be liable) without regard to whether such Taxes relate to periods (or portions thereof) ending on or prior to the Closing Date and all Liabilities for Taxes attributable to any broker, finder or agent or similar intermediary imposed on the Transferred Assets for any broker’s feeperiod (or portion thereof) ending on or prior to the Closing Date (including, finders’ fee in each case and without limitation, any liabilities of any Seller or similar fee or commission relating their respective Affiliates for Taxes related to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlAgreement).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Any provisions in this Agreement or any writing to the contrarycontrary notwithstanding, Buyer (nor any of its Affiliates) shall is assuming only the Assumed Liabilities and is not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in assuming any other manner be liable liability or responsible for any Liabilities obligation of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities Seller relating to the Business or arising out any Affiliate of Seller (or any predecessor owner of all or part of any of the following Business or assets of Seller or any Affiliate of Seller) of whatever nature, whether presently in existence or arising or asserted hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of Seller relating to the Business or its Affiliates (collectively, all such liabilities and obligations not being assumed being herein referred to as the “Excluded Liabilities”):). Without limiting the foregoing, none of the following shall be Assumed Liabilities for purposes of this Agreement:
(a) all costs any liabilities and expenses obligations of Seller relating to the Business for or in respect of Taxes (including any Taxes that arise as a result of the transactions contemplated by this Agreement), provided that transfer taxes incurred or to be incurred by Sellers in connection with the transaction contemplated by this Agreement and shall be paid in the consummation of the Transactionsmanner ser forth in Article 9;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessAsset Purchase Related Expenses;
(c) except as provided all other liabilities and obligations of the Seller under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any this Agreement and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthe Ancillary Agreements;
(d) all Liabilities for any and all Taxes liability or obligation under any Environmental Law incurred in or attributable to any Facility or the operation of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (Business on or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2before the Closing Date;
(e) all Liabilities to any broker, finder liability or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligation relating to the transactions contemplated by this Agreement for which any Seller an Excluded Asset (whether or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business not arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure prior to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or after the Closing Date) or any liability or obligation relating to a purchased Asset arising prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlClosing Date.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall not be deemed not to have assumed and shall not be obligated to payassumed, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred a. any liability or to be incurred by Sellers in connection with this Agreement and the consummation obligation of the TransactionsSeller arising under this Agreement;
(b) all Liabilities (i) related b. except to any current or former employee (including the Employeesextent provided in Section 12(f), candidate for employment, officer, director, consultantany liability or obligation of the Seller or its Affiliates with respect to, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to any employee benefit plan, executive deferred compensation plan or with respect any other plans or arrangements for the benefit of any employees of the Seller or any such Affiliate, including the Transferred Employees;
c. any liability or obligation of the Seller to any and all Employees, and contractors shareholders of Sellers the Seller or any of their Subsidiaries Affiliates or Affiliates to any party claiming to have a right to acquire any ownership interests or other securities convertible into or exchangeable for any ownership interests of the Seller;
d. all Environmental Liabilities relating to or arising at any time before out of the operation, affairs and conduct of the Business by Buyer in respect of periods prior to Closing;
(d) all Liabilities for e. any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any Taxes, fees, expenses or other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), amounts required to be paid as a transferee or successor, result of the transaction contemplated by Contract this Agreement;
f. any liability of Seller for Taxes (with respect to the Business or otherwise) for periods prior to the Closing;
g. all Liabilities arising from or relating to Proceedings other than the Assumed Proceedings;
h. except for Taxes for which Buyer is liable to the extent an Assumed Liability pursuant to Section 2.2;
(e) all Liabilities to any broker4, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission liabilities and obligations asserted after Closing relating to or arising out of the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or operation, affairs and conduct of the Business arising from or related to any Environmental, Health, and Safety Laws or the presence by Seller in respect of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or periods prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.or
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in any provision of this Agreement or any Conveyance Instrument to the contrary, Buyer the Company is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Northstar (nor or any predecessor owner of all or part of its Affiliatesbusiness and assets) shall not and does not assumeof whatever nature whether presently in existence or arising hereafter, and all such other liabilities and obligations shall be deemed retained by and remain liabilities of Northstar (all of such liabilities and obligations not being assumed hereinafter referred to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, as the “Excluded Liabilities”):) and, notwithstanding anything to the contrary in this Section 1.5, none of the following shall be “Assumed Liabilities” for purposes of this Agreement:
(a) all costs and expenses incurred Any liability for “Tax” (as defined in Section 6.4 of this Agreement) arising from or with respect to be incurred by Sellers in connection with this Agreement and the consummation Assets or the operations of the TransactionsBusiness that is incurred in or attributable to the “Tax Indemnification Period” (as defined in Section 6.4 of this Agreement) (the “Excluded Tax Liabilities”);
(b) all Liabilities (i) related Any liabilities or obligations relating to employee benefits or compensation, including, without limitation, any current liabilities or former obligations under any of Northstar’s employee (including the Employees)benefit agreements, candidate for employment, officer, director, consultantplans, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;; or
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission Any liabilities relating to the transactions contemplated by this Agreement for which Excluded Assets (it being understood that any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related Tax Liability relating to the Acquired Excluded Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence shall be an Excluded Tax Liability for purposes of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlAgreement).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) Purchaser shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities whatsoever of, or Action against, Sellers or relating to the Acquired Assets or the Acquired Business, of Sellers that are not Assumed Liabilitiesany kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, currently existing or hereafter arising, matured or unmatured, direct or indirect, and however arising, whether existing on the Closing Date or arising thereafter, including other than the Assumed Liabilities relating (all such Liabilities that are not Assumed Liabilities being referred to or arising out of any of the following (collectively, collectively herein as the “Excluded Liabilities”):
(a) all costs ). For the avoidance of doubt, Excluded Liabilities shall include any and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities and obligations for (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any EnvironmentalBusiness, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to or the extent arising Assumed Liabilities for any taxable period (or attributable to any period portion thereof) ending on or prior to the Closing; provided that Closing Date (as determined and paid in accordance with the event principles set forth in Section 9.4), (ii) any Taxes of any conflict between Section 2.2 Seller for any taxable period, (iii) gift cards, rewards points or loyalty rewards issued by any Seller, (iv) any Seller’s retail store leases, and this Section 2.3(v) amounts due to employees, Section 2.3 will control.independent contractors, consultants or Advisors of Sellers (other than any such amounts owed under any Assigned Contract after the Closing).
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything in this Agreement to Except for the contraryAssumed Liabilities, Buyer (nor any of its Affiliates) the Purchaser shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge assume or in any other manner way be liable or responsible for any Liabilities other obligations or liabilities of Sellers that are not Assumed Liabilities, whether existing on Seller. Without limiting the Closing Date or arising thereafter, including Liabilities relating to or arising out of any generality of the following (collectivelyforegoing, the “Excluded Liabilities”):Assumed Liabilities will not include:
(a) all costs expenses, obligations and expenses incurred liabilities of Seller arising from, relating to or to be incurred by Sellers in connection associated with this Agreement and the consummation operation of the TransactionsBusiness through the Closing (whether or not payable before, at or after the Closing);
(b) any Taxes;
(c) any liability relating to Benefit Plans;
(d) any obligation of Seller under this Agreement or any other agreement, document or instrument entered into by Seller pursuant to this Agreement;
(e) the Seller Expenses;
(f) the Seller Bonuses;
(g) any Indebtedness (other than Assumed Indebtedness) including without limitation all Liabilities (i) obligations and liabilities related to the PPP Loan;
(h) any current liability arising out of any action, arbitration, claim, proceeding or former employee litigation of any nature (including whether or not disclosed and regardless of the Employees)date on which such action, candidate for employmentarbitration, officerclaim, director, consultantproceeding or litigation is commenced) against Seller, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor the pre-Closing operation of the Business;
(ci) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before ClosingEnvironmental Liability;
(dj) all Liabilities for any and all Taxes liability arising out of Sellers (including any Liability of Sellers for the Taxes Seller’s violation of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Legal Requirement;
(ek) all Liabilities any liability arising out of the failure of Seller to comply with any brokeragreement, finder contract, lease, license or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleother commitment; and
(fl) all Liabilities related any liability to the Acquired Assets Seller or the Business arising from any Owner or related to any Environmental, Health, and Safety Laws Affiliate of Seller or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any Owner. Liabilities of the Acquired Assets, Seller that are not Assumed Liabilities are herein referred to collectively as the extent arising or attributable to any period on or prior to “Excluded Liabilities”. The Seller will discharge when due all of the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlExcluded Liabilities.
Appears in 1 contract
Samples: Asset Purchase and Contribution Agreement (BOSTON OMAHA Corp)
Excluded Liabilities. Notwithstanding anything Except as expressly set forth above in this Agreement to the contrarySection 2.2, Buyer (nor is not assuming any of its Affiliates) shall not and does not assumeliabilities or obligations of, or related to, Seller, the Assets or the Business, and shall be deemed not Seller agrees to have pay and discharge all such non-assumed liabilities and shall not be obligated to payobligations as and when the same become due and payable. Without limiting the generality of the foregoing, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not than the Assumed Liabilities, whether existing on the Closing Date in no event shall Buyer assume or arising thereafter, including Liabilities relating to incur any liability or arising out obligation under Section 2.2 or Section 2.3 or otherwise in respect of any of the following (collectively, the “Excluded Liabilities”):following:
(a) all costs and expenses incurred any liability or obligation under any Contract arising or accruing or relating to be incurred by Sellers in connection with this Agreement and any period prior to the consummation of Closing Date, whether related to the TransactionsAssets or otherwise;
(b) all Liabilities (i) except where otherwise provided, any indebtedness for borrowed money, whether related to any current the Assets or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessotherwise;
(c) except as provided under Section 2.2(d)any breach of contract, all Liabilities arising product liability or similar claim, regardless of when made or asserted, which accrued or which arises out of, relating or is based upon, any act, express or implied representation, warranty, agreement or guarantee made by Seller or alleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law, to the extent in connection with respect any service performed or product designed, sold, or leased by or on behalf of Seller or TSG on or prior to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthe Closing Date;
(d) all Liabilities any federal, state or local income or other Tax (i) payable with respect to the Business, Assets, properties or operations of Seller or TSG for any and all Taxes of Sellers period prior to the Closing Date, or (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (ii) incident to or any similar provision of state, local or foreign Law), arising as a transferee or successor, consequence of the consummation by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Seller of this Agreement and the transactions contemplated hereby;
(e) all Liabilities any liability or obligation to any brokeremployees, finder agents or agent independent contractors of Seller or similar intermediary for under any broker’s feebenefit arrangement with respect thereto;
(f) any Subscriber or other customer claims, finders’ fee charge-backs, or similar fee related liability or commission relating obligations that are outside of those incurred in the Ordinary Course of Business, and are attributable to periods and arising from sales of goods or services occurring prior to the Closing Date provided however that product returns in the Ordinary Course of Business consistent with past practice of Seller and the Business shall be assumed by the Buyer;
(g) any liability or obligation of Seller arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblehereby and fees and expenses; and
(fh) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmentalof counsel, Health, accountants and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlother experts.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (KeyOn Communications Holdings Inc.)
Excluded Liabilities. Notwithstanding anything In no event shall Purchaser assume or incur any Liability under this Section 2.4 or otherwise in this Agreement to respect of any Liability of Seller, other than the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafterincluding, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):without limitation:
(a) all costs and expenses incurred any product Liability or similar claim for injury to person or property, or any other Liability based on tortious or illegal conduct, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by Seller, or alleged to have been made by Seller, or which is imposed or asserted to be incurred imposed by Sellers operation of law, in connection with this Agreement and the consummation any service performed and/or product sold, leased or delivered by or on behalf of the TransactionsSeller, or any claim seeking recovery for consequential damage, lost revenue or income;
(b) all Liabilities any Liability with regard to any federal, state, local or foreign income or other tax, including without limitation, any interest or penalties thereon, (i) related payable with respect to any current or former employee (including the Employees)Business, candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller the Assets or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed incident to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor arising as a consequence of the Businessnegotiation or consummation by Seller of this Agreement and the transactions contemplated hereby;
(c) except as provided any Liability under Section 2.2(d), all Liabilities arising out of, relating to or in connection with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthe Excluded Assets;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (arising prior to or any similar provision of state, local or foreign Law), as a transferee result of the Closing to any employees, agents or successorindependent contractors of Seller, whether or not employed by Contract Purchaser after the Closing, or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2under any benefit arrangement with respect thereto;
(e) all Liabilities to any brokerLiability of Seller arising or incurred in connection with the negotiation, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to preparation and execution of this Agreement and the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblehereby and fees and expenses of counsel, accountants and other experts; andand/or
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlLiability which is not an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Seller (nor or any predecessor owner of all or part of its Affiliatesbusinesses and assets) shall not of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of Seller (all such liabilities and obligations not being assumed being herein referred to have assumed and shall not be obligated as the "EXCLUDED LIABILITIES"), and, notwithstanding anything to paythe contrary in this Section 2.04, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any none of the following (collectively, shall be Assumed Liabilities for the “Excluded Liabilities”):purposes of this Agreement:
(a) all costs and expenses incurred or any liability set forth on the Balance Sheet other than those expressly assumed pursuant to be incurred by Sellers in connection with this Agreement and the consummation of the TransactionsSection 2.03(a);
(b) all Liabilities (i) related to any current obligation or former employee (including the Employees), candidate liability for employment, officer, director, consultant, or contractor of Tax other than any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to Tax imposed by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including law solely on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessGreat Nordic, if any;
(c) except as to the extent provided under Section 2.2(d)in Article 9, all Liabilities arising out of, any liabilities or obligations relating to employee benefits or with respect compensation arrangements existing on or prior to the Closing Date, including, without limitation, any and all Employees, and contractors of Sellers liabilities or obligations under any of their Subsidiaries Seller's employee benefit agreements, plans or Affiliates arising at any time before Closingother arrangements listed on Schedule 9.02;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Environmental Liability;
(e) all Liabilities to any brokerobligations under any agreements or understandings (written or oral) with directors, finder officers or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to employees of the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleDynatech, except as set forth in Section 2.03(c) hereof; and
(f) all Liabilities related any liability or obligation relating to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlan Excluded Asset.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Seller or any Affiliate of Seller (nor or any predecessor owner of all or part of its Affiliatesbusiness and assets) shall not of whatever nature whether presently in existence or arising or asserted hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of Seller or its Affiliates (all such liabilities and obligations not being assumed being herein referred to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, as the “Excluded Liabilities”):). Without limiting the foregoing, none of the following shall be Assumed Liabilities for the purposes of this Agreement:
(a) all costs and expenses incurred or except for Taxes expressly assumed by Buyer pursuant to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees)Article 9 hereof, candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employeesliabilities and obligations of Seller for Taxes, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), that arise as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to result of the transactions contemplated by this Agreement and including any sales taxes due in any jurisdiction with respect to periods prior to the Closing Date;
(b) any liabilities or obligations for which transaction related bonuses described in Schedule 3.17(f);
(c) any contractual or other liability owed by Seller to Xxxxxxx Xxxxx & Company and any other liability or its Subsidiaries obligation related to Seller’s costs and expenses incurred in connection with this Agreement;
(d) any liability arising prior to closing with respect to an Assumed Plan to the extent that such liability (i) arises with respect to a fiduciary breach under ERISA or Affiliates are responsiblea nonexempt prohibited transaction under ERISA or the Code, (ii) gives rise to a penalty under ERISA or the Code or (iii) relates to benefits determined by a court to be available under an Assumed Plan but not covered by any underlying insurance contract in effect as of the date the events giving rise to the benefit claim arose;
(e) any Environmental Liabilities;
(f) any liability relating to any claim brought by Xxxxx Xxxxx, whether or not currently pending, in any governmental agency or tribunal; and
(fg) all Liabilities related any liability or obligation relating to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlan Excluded Asset.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement to the contraryAgreement, Buyer shall not assume or be liable for (nor a) any of the Companies' liabilities under this Agreement and any agreements and instruments entered into in connection herewith; (b) amounts owed by the Alarm Subsidiaries to Republic or any of its Affiliates; (c) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out Indebtedness of any of the following Companies, (collectively, the “Excluded Liabilities”):
(ad) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation Taxes of any of the Transactions;
Companies; (be) any claims arising out of prior acquisitions by the Companies, including without limitation, from indemnification claims or held back or contingent consideration; (f) any Liability arising under any contract or agreement which is not an Assumed Contract; (g) any and all Liabilities (i) related to any current under or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or the employee benefit plans, programs, arrangementspolicies and arrangements of the Companies (including, or agreements without limitation, any and all Liabilities of the Plans, including those set forth on the Employee Benefits Schedule), other than as explicitly assumed by Buyer in Section 5.4; and (h) any Liabilities of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or Company with respect to which any Seller equity securities or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers rights or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission options relating to the transactions contemplated by this Agreement for which such securities (including, without limitation, any Seller equity financing agreements, stock option or its Subsidiaries award agreements or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release ofplans, or exposure tosecurities law violations) (collectively, any Hazardous Substance atthe "Excluded Liabilities"). The Seller hereby acknowledges that it is retaining the Excluded Liabilities and the Seller shall have the sole responsibility to pay, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 discharge and this Section 2.3, Section 2.3 will controlperform all such liabilities and obligations promptly when due.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary in the Transaction Documents, Buyer (nor any of and its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that Affiliates are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of assuming any liabilities and liabilities of the following (collectivelyGroup Companies not expressly assumed under the Transaction Documents and any liabilities and obligations of the Group Companies not related to the Business, which shall constitute the “Excluded Liabilities”):. Subject to the terms and conditions of the Transaction Documents, Excluded Liabilities include:
(a) all costs liabilities and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation obligations of the TransactionsGroup Companies for Taxes related to income or revenue received prior to the Closing Date or any Pre-Closing Tax Period;
(b) all Liabilities (i) related to any current liabilities of the Group Companies arising out of or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any product liability, infringement, misappropriation or other compensation or benefit plansviolation, programs, arrangements, or agreements of any kind indemnity (including all assetsof employees or directors), trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to warranty or required to be contributed to similar claims by any of SellersPerson, any of their Subsidiaries in each case to the extent such liabilities arise prior to Closing or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor otherwise as a result of the Businessconduct of the Business prior to Closing;
(c) except all liabilities of the Group Companies arising out of or relating to any Intellectual Property Rights or content used or distributed by the Business prior to Closing for which the Group Companies do not have valid, enforceable and sufficient licenses for use or distribution (other than as provided expressly assumed under Section 2.2(d2.02(c), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing);
(d) all Liabilities for any and all Taxes of Sellers (liabilities or obligations relating to employee benefits or compensation arrangements existing on or prior to the Closing Date, including any Liability liability or obligation under any of Sellers for the Taxes of any Group Company’s employee benefit agreements, plans or other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2arrangements;
(e) all Liabilities liabilities of the Group Companies with respect to any brokereach pending or threatened action, finder litigation or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating proceeding to the transactions contemplated by this Agreement for which any Seller extent based on facts or its Subsidiaries circumstances existing on or Affiliates are responsible; andprior to the Closing Date (other than as expressly assumed under Section 2.03(c));
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, liabilities and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any obligations of the Acquired Assets, to Group Companies arising under the extent arising Transaction Documents; and
(g) all liabilities and obligations of the Group Companies for Taxes imposed or attributable to any period on asserted in connection with the Onshore Transactions or prior to sale of the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlBusiness.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Except as set forth in this Agreement to Section 1.3, the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall assume or be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities or obligations of the Sellers (collectively, the “Excluded Liabilities”):), including without limitation:
(a) any and all costs liabilities or obligations associated with or relating to any Excluded Assets, any long term indebtedness and expenses incurred any intercompany payables or to be incurred by Sellers in connection with this Agreement and the consummation receivables of the TransactionsSellers owed to any one or more of Sellers or Sellers’ Affiliates; members, managers or partners;
(b) all Liabilities any liability, complaint, claim or obligation of any kind, character or nature arising out of (i) related to any current the conduct of the Sellers whether or former employee not in connection with the operations of the Business (including the Employeesexcept as expressly provided for in Section 1.3), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with the employment by the Sellers of any employees of the Business or in the provision of any way relating employee benefit to such employees pursuant to any Benefit Plan and any other compensation plan, program or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to arrangement maintained by any of SellersSeller (whether or not subject to ERISA and whether or not written), any of their Subsidiaries whether such claim arises before or Affiliates, after the Closing Date and whether or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessnot such employees become Buyer’s employees;
(c) except as provided under Section 2.2(d)any liability or obligation of the Sellers owing to any equity holder or Affiliate thereof including, all Liabilities without limitation, any obligations arising out of, relating of or related to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthe transactions contemplated hereby;
(d) any liabilities related to (i) income taxes of the Sellers, (ii) all Liabilities for any other taxes attributable to the Sellers or to Sellers’ operation of the Business including, but not limited to, sales and all Taxes of Sellers use taxes, and (including any Liability of Sellers for the Taxes iii) taxes of any other Person under Treasury Regulations Section 1.1502-6 person or third party (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract except Buyer) pursuant to an agreement or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any brokerliabilities, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission responsibilities and obligations relating to the transactions contemplated operation of the Business or the actions of the Sellers prior to the Closing Date under any rule, regulation, law, mandate, decision or order of the MPSC, KCC, FCC, National Exchange Carriers Association (“NECA”), Universal Service Administration Company (“USAC”) or any other Governmental Entity (as defined in Section 8.9(d)), whether enacted or promulgated before, on or after the Closing Date;
(f) any liabilities existing or arising under Environmental Laws attributable to or incurred as a result of any acts, omissions or conditions first occurring or in existence as of or prior to the Closing Date, including, but not limited to, liabilities for the release, threatened release, handling, discharge, treatment, storage, disposal, transport, presence, or migration of Regulated Materials (as defined in Section 2.12(d));
(g) any obligation or requirement imposed by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleGovernmental Entity, including any Environmental Authority (as hereinafter defined) arising and required to be performed prior to the Closing Date; and
(fh) all Liabilities related to the Acquired Assets or the Business arising from or related to any EnvironmentalSellers’ contract with GVNW Consulting, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.Inc.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fairpoint Communications Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) The Assumed Liabilities shall not include, and does not in no event shall Buyer assume, and shall be deemed not to have assumed and shall not be obligated agree to pay, perform, discharge or in satisfy any other manner be liable liability or responsible obligation hereunder or otherwise have any responsibility for any Liabilities liability or obligation of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following Seller (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers shown in connection with this Agreement the Seller Financial Statements and the consummation of the TransactionsSeller Additional Interim Financial Statements (each as defined below);
(b) for all Liabilities (i) related to any current accounts payable, costs, expenses, liabilities or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation obligations of Seller arising or benefit plansincurred prior to the Closing Date, programsexcept to the extent any such costs, arrangementsexpenses, liabilities or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed other obligations relate to or Seller’s obligations under Assumed Contracts that are required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of performed after the BusinessClosing Date;
(c) for any governmental fees and taxes even if payment is required after the Closing Date, except as provided under Section 2.2(d), all Liabilities arising out of, for any governmental fees or taxes relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates the Purchased Assets arising at any time before Closingafter the Closing Date;
(d) all Liabilities for pertaining to any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Excluded Asset;
(e) all Liabilities to any brokerrelating to, finder resulting from or agent arising out of Seller’s employment, engagement or similar intermediary for any broker’s feetermination of its employees, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleconsultants and directors; andor
(f) arising or incurred in connection with the negotiation, preparation and execution hereof and the Contemplated Transactions and any fees and expenses of counsel, accountants, brokers, financial advisors or other experts of the Seller. Such Excluded Liabilities shall include all Liabilities related to the Acquired Assets or the Business arising from or related claims, actions, litigation and proceedings relating to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any all of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that foregoing and all costs and expenses in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlconnection therewith.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything the provisions of Section 1.6 or any other provisions in this Agreement to the contrary, Buyer (nor any of its Affiliates) Purchaser shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated responsible to pay, perform, perform or discharge or in any other manner be liable or responsible for any Liabilities liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out Seller of any of kind or nature whatsoever other than the following Assumed Liabilities (collectively, the “Excluded Liabilities”):), and the Seller shall pay and remain responsible for all such Excluded Liabilities. Without limiting the generality of this Section 1.7, the Excluded Liabilities shall include, but not be limited to, the following:
(a) all costs and expenses incurred any liability of Seller arising from, or to be incurred by Sellers in connection with this Agreement and with, the consummation conduct of the Transactions;
(b) all Liabilities (i) related Business on or prior to any current Closing or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor ownership of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, Purchased Assets by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing, including, without limitation, any such liabilities arising by reason of any violation or claimed violation by Seller, by acts or events or omissions arising or occurring prior to the Closing, of any federal, state or local law, rule, regulation, ordinance or any requirement of any governmental body;
(b) to the extent not covered by any applicable manufacturer’s warranty, any warranty liability of Seller or similar obligation of Seller arising from products sold or services rendered prior to the Closing Date;
(c) any liability of Seller related to or arising out of the Excluded Assets;
(d) any liability of Seller for any Taxes;
(e) except for up to a maximum of $6,000 of Assumed Commission Liabilities described in Section 6.3, any liability for any present or former employees, agents or independent contractors of Seller, including, without limitation, any liabilities associated with any claims for wages, bonuses, commissions or other benefits, severance, termination or other payments;
(f) any liability under any Benefit Plan (later defined), including without limitation, any employee benefit plan of or sponsored by Seller, any 401K plan or any other “employee pension benefit plan” as defined in Section 3(2) of ERISA (later defined);
(g) any liability or obligation with respect to indebtedness of Seller or any affiliate of Seller to any bank or other financial institution or to Xxxx Xxxx reflected as a liability on Seller’s Financial Statements or which may otherwise exist; provided that and
(h) all trade payables and accounts payable of Seller not included in the event calculation of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlClosing Working Capital.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer (nor is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of its Affiliates) shall not Seller or any Company of whatever nature, whether currently in existence or arising hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of Seller or the applicable Company (all such liabilities and obligations not being assumed being herein referred to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, as the “Excluded Liabilities”):). Notwithstanding any provision in this Agreement or any other writing to the contrary, Excluded Liabilities include:
(a) all costs Taxes for any Straddle Period that are the responsibility of Sellers under Section 7.04, and expenses incurred any Taxes attributable to the Purchased Assets for any Tax period ending on or to be incurred by Sellers in connection with this Agreement and before the consummation of the TransactionsClosing Date;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessIndebtedness;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, any liabilities relating exclusively to the voice or with respect to any and all Employees, and contractors SEF business of Sellers or any of their Subsidiaries or Affiliates arising at any time before ClosingSeller;
(d) all Liabilities for any liabilities with respect to Non-Transferred Employees and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Business Benefit Plans;
(e) all Liabilities to any broker, finder liabilities or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligations relating to Transferred Employees arising out of events or circumstances occurring before the transactions contemplated by this Agreement Closing Date, including, for which the avoidance of doubt, any Seller and all liabilities, losses, claims, damages, costs or its Subsidiaries expenses (including attorneys’ fees) arising from or Affiliates are responsiblein connection with the Transferred Employees’ service to the Business; and
(f) all Liabilities related any liability or obligation relating to the Acquired Assets an Excluded Asset or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controla Specified Claim.
Appears in 1 contract
Samples: Asset Purchase Agreement (GAIN Capital Holdings, Inc.)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary contained herein, Buyer (nor any of its Affiliates) the Purchaser shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner way be liable or responsible for for, any Liabilities of Sellers that are not Assumed Liabilitiesliabilities, commitments, or obligations, whether existing on the Closing Date known or arising thereafterunknown, including Liabilities disclosed or undisclosed, absolute, contingent, inchoate, fixed or otherwise, of Seller, including, without limitation, all liabilities, commitments or obligations relating to or arising out of any of from the following Assets or the use thereof, except for those that are the Assumed Liabilities (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, the Purchaser shall not assume, and Seller shall remain responsible for the following liabilities, commitments, or obligations, whether known or unknown, disclosed or undisclosed, absolute, contingent, fixed or otherwise (all of which shall be Excluded Liabilities):
(a) all costs and expenses incurred any liabilities, commitments or obligations that arise with respect to the Assets or the use thereof on or prior to the Closing Date or relate to periods on or prior to the Closing Date or are to be incurred by Sellers observed, paid, discharged or performed on or prior to the Closing Date (in connection each case, including any liabilities that result from, relate to or arise out of tort or other product liability claims) other than, in each case, with this Agreement and respect to the consummation of the TransactionsAssumed Contracts;
(b) all Liabilities (i) related to any current liability, commitment or former employee (including the Employees), candidate for employment, officer, director, consultantobligation of, or contractor of required to be paid by, Seller for any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements Taxes of any kind (including all assets, trusts, insurance policies and administration service contracts related theretoother than for the Operations or the Assets) at for any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessperiod;
(c) except as provided under Section 2.2(d)any liability, all Liabilities arising out of, commitment or obligation for any Taxes relating to the Operations or with respect the Assets for or applicable to the Pre-Closing Tax Period, including any and all EmployeesProperty Taxes, and contractors of Sellers any liability, (any liability, commitment or any of their Subsidiaries obligation set forth in this clause (c) or Affiliates arising at any time before Closing;in clause (b) above, “Excluded Taxes”); and
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes liability or obligation of any other Person kind under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer contract that is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlnot an Assumed Contract.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, assume and shall be deemed not to have assumed and shall will not be obligated to pay, perform, or otherwise discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities or obligations (collectively, the “"Excluded Liabilities”"):
(a) all costs and expenses incurred any liabilities or obligations of Seller to be incurred by Sellers in connection with this Agreement and the consummation of the Transactionsextent related to any Excluded Assets;
(b) all Liabilities (i) related any liabilities or obligations of Seller for any breach or default by Seller prior to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or AffiliatesEffective Time, or any ERISA Affiliate event prior to the Effective Time, which after the giving of notice or passage of time or both would constitute a default or breach by Seller, of or under the Business Agreements, Franchises, the Transferable Permits, or with respect the Transferable Environmental Permits, except to which any Seller the extent that such liability or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on obligation is taken into account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of in determining the BusinessAdjustment Amount;
(c) except as provided under Section 2.2(dall trade accounts payable and other accrued and unpaid current expenses in respect of goods and services incurred by or for the Business in the ordinary course of business to the extent attributable to the period prior to the Effective Time (the "Accounts Payable"), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities any liabilities or obligations of Seller in respect of indebtedness for borrowed money;
(e) any and all liabilities or obligations in respect of Taxes of Sellers (including Seller or any Liability Tax Affiliate of Sellers Seller, or any liability of Seller for the unpaid Taxes of any other Person under Treasury Regulations Section Regulation section 1.1502-6 (or any similar provision of state, local local, or foreign Law), law) as a transferee or successor, by Contract contract or otherwise) , except for Taxes for which Buyer is liable pursuant to Section 2.23.4 or Section 7.7;
(ef) all Liabilities any obligations of Seller for wages, employment Taxes, or severance pay to the extent attributable to the period prior to the Effective Time (except, with respect to vacation days and severance pay, as otherwise provided in Section 7.9);
(g) except for the Assumed Environmental Liabilities, (i) any liabilities or obligations arising from any lawsuit (including any workers compensation claim) against Seller involving the Business filed prior to the Effective Time, (ii) any liabilities or obligations arising from any lawsuit (including any workers compensation claim) arising from an Actionable Incident related to the Purchased Assets or the Business which occurred prior to the Effective Time, or (iii) any criminal fines or penalties imposed by a Governmental Entity resulting from (A) an investigation or proceeding before a Governmental Entity regarding acts which occurred prior to the Effective Time, or (B) intentional fraud by Seller or its Affiliates prior to the Effective Time;
(h) except as otherwise provided in Section 7.9, any liability or obligation of Seller or an ERISA Affiliate of Seller under or in connection with any of the Benefit <PAGE> Plans, including under any deferred compensation arrangement or severance policy or any obligation to make any parachute or retention payment;
(i) any grievance arising out of or under any Collective Bargaining Agreement, or other collective bargaining agreement applicable to any brokerof the Business Employees, finder prior to the Effective Time, and except as provided in Section 7.9, any other liabilities or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligations of Seller relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination, by Seller of any individual, to the extent the circumstances giving rise to the liability or obligation occurred prior to the Effective Time;
(j) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection in herewith, and any of the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblehereby and thereby; and
(fk) all Liabilities related to the Acquired Assets amount of any disallowance (whether reflected in a required rate adjustment or the Business arising from a denial of a requested rate adjustment or related to otherwise affecting Buyer) in any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assetsgas cost recovery proceeding, to the extent arising or attributable to any period on or the disallowance results from a finding by the PSC of an imprudent gas decision made by Seller prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlEffective Time.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything the provisions of Section 1.3 or any other provision in this Agreement to the contrary, Buyer (nor any of its Affiliates) Newco shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated responsible to pay, perform, perform or discharge or in any other manner be liable or responsible for any Liabilities of Sellers the Company or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Company 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 generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Company arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Company (or any shareholder or Affiliate of the Company) or relating to the Business, the Purchased Assets or the Assumed Liabilities for any pre-Closing Tax period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or that are not Assumed Liabilities, whether existing on the Closing Date responsibility of the Company; or arising thereafter, (iii) other Taxes of the Company (or any shareholder or Affiliate of the Company) of any kind or description (including any Liability for Taxes of the Company (or any shareholder or Affiliate of the Company) that becomes a Liability of Newco 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 any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the TransactionsAssets;
(bd) all any Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor in respect of any Seller pending or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities threatened Action arising out of, relating to or with otherwise in respect of the operation of the Business or the Purchased Assets to any and all Employees, and contractors of Sellers the extent such Action relates to such operation on or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for prior to the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Closing Date;
(e) all Liabilities any claim for injury to any broker, finder a Person or agent property which arises out of or similar intermediary for any broker’s fee, finders’ fee is based upon the use by Persons of the Real Property or similar fee while an invitee or commission relating trespasser on the Real Property resulting from actions and/or failures to act prior to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; andClosing;
(f) all any Liabilities related of the Company arising under or in connection with any Employee Benefit Plan providing benefits to any present or former employee of the Company;
(g) any Liabilities to any Governmental Authority arising from actions and/or failures to act prior to the Acquired Assets or the Business arising from or related to Closing Date;
(h) any Environmental, Health, and Safety Laws or the presence of or release ofEnvironmental Claims, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired AssetsLiabilities under Environmental Laws, to the extent arising out of or attributable relating to any period facts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising from actions and/or failures to act prior to the Closing Date;
(i) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee, independent contractor or agent of the Company (including with respect to any breach of fiduciary obligations by same);
(j) any Liabilities under the Excluded Contracts or any other Contracts, including Company Intellectual Property Agreements, (i) which are not validly and effectively assigned to Newco pursuant to this Agreement, or (ii) to the extent such Liabilities arise out of or relate to a breach by the Company of such Contracts prior to the Closing;
(k) any Liabilities associated with debt, loans or credit facilities of the Company or guaranteed by the Company and/or the Business owing to financial institutions other than those set forth on Section 1.3(c);
(l) any Liabilities arising out of, in respect of or in connection with the failure by the Company or any of its Affiliates to comply with any Law or Governmental Order;
(m) those Liabilities of the Company set forth on Section 1.4(m) of the Disclosure Schedules; provided that in and
(n) any Liabilities arising out of or related to the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlPPP Loan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Forward Industries, Inc.)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) Purchaser shall not and does not assume, and shall be deemed does not to have assumed hereby assume, any obligation of Seller except as expressly set forth herein. Notwithstanding the foregoing, and without limiting the generality of the foregoing, Purchaser shall not be obligated assume any obligations with respect to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter(i) compensation, including Liabilities relating to any commissions, accrued compensation or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or fees to be incurred by Sellers paid in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current employee benefit plan or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under arrangement or with respect to which any Seller income or any Subsidiary other taxes, except as and to the extent that the same are included in the Assumed Liabilities described or Affiliate referred to in Section 1.3 above; (ii) all real estate taxes on other real estate and properties carried as in substance foreclosures of Seller, all sales and use, social security and unemployment taxes withheld or collected from employees or customers and all accounts payable and operating expenses, whether or not accrued, for products or services incurred prior to the effective time of the Closing including, but not limited to, salaries, attorneys’ fees and telephone, utility, advertising and public relations expenses, except that to the extent that an adjustment to the purchase price hereunder is made in respect of any Seller has such liability or has had any Liabilityobligation, including on account of an ERISA Affiliate Purchaser shall assume all liability with respect thereto; (iii) liabilities or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or obligations with respect to any litigation, suits, claims, demands or governmental proceedings asserted by third parties against Seller and all Employeesarising, commenced or resulting from the operations of the Eagle Pass Branch prior to the effective time of the Closing; and contractors (iv) Seller’s cashier checks, money orders, interest checks and expense checks issued prior to Closing, consignments of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for U.S. Government “E” and “EE” bonds and any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any brokertraveler’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlchecks.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Texas Regional Bancshares Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) CRRA shall not and does not assume, and shall assume or be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out performance of any of the following Liabilities (collectively, the “"Excluded Liabilities”"):
(a) all costs and expenses incurred any Liability of CL&P in respect of or to be incurred by Sellers in connection with this Agreement and otherwise arising from the consummation operation or use of the TransactionsExcluded Assets or any other assets of CL&P that are not Acquired Assets, provided that the foregoing shall not limit or otherwise affect CRRA's assumption of Environmental Liabilities pursuant to Section 2.3(a);
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account including, without limitation, any Environmental Liability, relating to or arising from the treatment, disposal, storage, discharge, Release, recycling or the arrangement for such activities at, or the transportation to, any Offsite Disposal Facility, by CL&P prior to the Closing Date, of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of Hazardous Substances that were generated at the Business;Site.
(c) except as provided under Section 2.2(d)any Liability, all Liabilities arising out ofincluding, without limitation, any Environmental Liability, relating to or arising from the Release of any Hazardous Substances at the Site prior to the Closing Date that migrate, or have migrated, from the Site at any time to any location, including, without limitation, the Connecticut River; provided, however, that:
(i) to the extent that CL&P can demonstrate that the migration of Hazardous Substances off of the Site was caused by the act or negligent omission of CRRA (or any subsequent owner of the Site), its employees, agents or consultants, or any Person using and/or operating the Facility and/or the Site on behalf of, or under contract with, CRRA (or such subsequent owner) after the Closing Date, any Environmental Liability arising from such act or omission shall not be an Excluded Liability. For purposes of this Section , "negligent omission" means the failure to take reasonable and prudent actions to prevent or minimize migration of Hazardous Substances off of the Site;
(ii) CL&P shall not have any such Liability with respect to any and Release relating to the Jets after the effective date of the Jet License, including, without limitation, any act or omission (including without limitation, compliance with all EmployeesEnvironmental Laws or Permits) of CRRA or the Operator with respect to the Jets, and contractors any Environmental Claims or Environmental Liabilities, including the Release of Sellers any Hazardous Substances, resulting from the interconnection, operation or maintenance of the Jets during the term of the Jet License; and
(iii) CL&P shall not have any such Liability with respect to any Release relating to the EGF after the Effective Date, including, without limitation, any act or omission (including without limitation, compliance with all Environmental Laws or Permits) of their Subsidiaries CRRA or Affiliates arising at its operator with respect to the EGF, and any time before ClosingEnvironmental Claims or Environmental Liabilities, including the Release of any Hazardous Substances, resulting from the interconnection, operation or maintenance of the EGF during the term of the EGF License;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for CL&P arising from the Taxes making or performance of any other Person under Treasury Regulations Section 1.1502-6 (this Agreement or any similar provision of state, local a Related Agreement or foreign Law), as a transferee the transactions contemplated hereby or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2thereby;
(e) all Liabilities to any broker, finder Liability of CL&P in respect of payment obligations for goods delivered or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating services rendered prior to the transactions contemplated by this Agreement for Closing Date or other Liabilities under contracts or leases which any Seller or its Subsidiaries or Affiliates are responsible; andCRRA has not assumed pursuant to Section 2.3(b);
(f) all Liabilities related any Liability which is or would be required to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence be accrued by CL&P on a balance sheet of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any CL&P as of the Acquired AssetsClosing Date prepared in accordance with GAAP, to the extent other than those Liabilities which are expressly set forth as Assumed Liabilities in Section s 2.3(a), (b) and (c) hereof; (g) any Liability of CL&P arising or attributable to any period on or prior to the Closing; provided that in the event out of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.Employee Benefit Plan established or maintained by CL&P or to which CL&P contributes or any Liability for the termination of any such Employee Benefit Plan;
Appears in 1 contract
Samples: Title Transfer Agreement (Northeast Utilities System)
Excluded Liabilities. Notwithstanding anything Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Seller of whatever nature whether presently in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not existence or arising hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of Seller (all such liabilities and obligations not being assumed being herein referred to have assumed and as the "Excluded Liabilities"). The Excluded Liabilities shall include, but not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectivelylimited to, the “Excluded Liabilities”):following:
(a) all costs any liabilities or obligations for Taxes or any audits related thereto (including, without limitation, sales and expenses incurred payroll taxes) arising from or relating to be incurred by Sellers in connection with this Agreement (i) the Excluded Assets or any business (other than the Business) of Seller, and (ii) the consummation Assets or the operation of the TransactionsBusiness attributable to or incurred in the Pre-Closing Tax Period;
(b) all Liabilities (i) related to any current liabilities or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way obligations relating to any Benefit Plan and any other employee benefits or compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period arrangements existing on or prior to the Closing Date, including, without limitation, any liability or obligation arising from or relating to (A) "sticking bonuses" or similar payments to induce Seller's employees to remain in Seller's employ prior to Closing; provided that in the event , (B) earned or accrued vacation pay for all employees who are not Transferred Employees, (C) earned or accrued sick leave, (D) short-term or long-term disability benefits or (E) any liabilities or obligations under any of any conflict between Section 2.2 and this Section 2.3Seller's employee benefit agreements, Section 2.3 will control.plans or other arrangements required to be listed on Schedule 9.2 (a) or Schedule 9.2 (c);
Appears in 1 contract
Samples: Asset Purchase Agreement (Adelphia Communications Corp)
Excluded Liabilities. Notwithstanding anything in this Agreement any provision hereof to the contrary, Buyer (nor any of its Affiliates) Purchaser shall not and does not assume, and shall assume nor otherwise be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities and obligations of Seller other than the Assumed Liabilities (collectively, the “Excluded Liabilities”):), which Excluded Liabilities shall remain the responsibility and obligation of Seller, and shall not be assumed by Purchaser. Without limiting the generality of the foregoing, Excluded Liabilities shall include:
(ai) all costs Any liabilities for legal, accounting, audit and investment banking fees, and any other fees or expenses incurred or to be incurred by Sellers Seller in connection with the negotiation and preparation of this Agreement and the consummation sale of the TransactionsPurchased Assets to Purchaser;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising underAny liabilities of Seller for Taxes, in connection with or in any way relating but subject to any Benefit Plan the prorations and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessadjustments set forth herein;
(ciii) except as provided under Section 2.2(d), all Liabilities arising out of, Any liabilities relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before ClosingExcluded Assets;
(div) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant Any liabilities relating to Section 2.2pending litigation;
(ev) all Liabilities to any broker, finder All of Seller’s indebtedness or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating accounts payable which arose prior to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibledate of Closing; and
(fvi) all Liabilities related Except as expressly provided in this Agreement, (i) any liabilities, including, without limitation, back pay or fringe benefits of Seller’s Employees or any obligation under the Benefit Plans, fines, penalties, attorney’s fees and costs or other liabilities, including, without limitation, WARN liabilities, relating to the Acquired Assets or the Business arising from or related to Seller’s Employees (as defined below), (ii) any Environmental, Health, and Safety Laws or the presence of or release ofdispute with any labor organizations, or exposure to(iii) any dispute or cost liability relating thereto, with any Hazardous Substance at, on, under, past or migrating to any present employee of the Acquired Assets, to the extent Seller arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlClosing Date.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement Seller and Purchaser agree that Purchaser does not agree to the contrary, Buyer (nor assume and shall have no responsibility for any of its Affiliates) the debts, obligations or liabilities of Seller other than the Assumed Liabilities (the "Excluded Liabilities"), all of which shall not and does not assume, remain the sole responsibility of and shall be deemed not to have assumed paid and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any discharged by Seller as they become due. The Excluded Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any include without limitation all of the following (collectively, the “Excluded Liabilities”):following:
(a) all costs Any tax liability or tax obligation of Seller, its directors, officers, shareholders and expenses incurred agents which has been or to may be incurred 3 asserted by Sellers any taxing authority, including without limitation any such liability or obligation arising out of or in connection with this Agreement and or the consummation of the Transactions;transactions contemplated hereby.
(b) all Liabilities (i) related Any liability or obligation of Seller whether incurred prior to, at or subsequent to the Closing Date for any amounts due or which may become due to any current person or former employee (including the Employees), candidate for employment, officer, director, consultant, entity who is or contractor has been a holder of any Seller debt or equity security of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;Seller.
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to Any trade account payable or with respect to any and all Employees, and contractors note payable of Sellers Seller or any contract obligation of their Subsidiaries Seller (other than those referred to in Section 3.1) whether incurred prior to, at or Affiliates arising at any time before Closing;subsequent to the Closing Date.
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes Any liability or obligation arising out of any other Person under Treasury Regulations Section 1.1502-6 (litigation, suit, proceeding, action, claim or any similar provision investigation, at law or in equity or in arbitration, related to Seller's operation of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant the Business prior to Section 2.2;the Closing Date.
(e) all Liabilities to Any claim, liability or obligation, known or unknown, contingent or otherwise, the existence of which is a breach of, or inconsistent with, any brokerrepresentation, finder warranty or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by covenant of Seller set forth in this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; andAgreement.
(f) all Liabilities related to the Acquired Assets Any liability or obligation specifically stated in this Agreement or the Business arising from or related Schedules hereto as not to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlbe assumed by Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Data Transmission Network Corp)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary set forth herein, Buyer (nor any of its Affiliates) the Assumed Liabilities shall not include, and does not in no event shall the Purchaser assume, and shall be deemed not to have assumed and shall not be obligated agree to pay, perform, discharge or perform or incur any liability or obligation of the Company under this Agreement which is not expressly included as an Assumed Liability in any accordance with Section 1.4 hereof (all obligations and liabilities of the Company, other manner be liable or responsible for any Liabilities of Sellers that are not than the Assumed Liabilities, whether existing are hereinafter referred to as the "EXCLUDED Liabilities"). Except as set forth in Section 1.4, the Excluded Liabilities shall include, but not be limited to, the following:
(a) claims, obligations and liabilities of the Company (including claims for compensatory or punitive damages), known or unknown, direct or indirect, including all costs and expenses relating thereto, that arise out of any Proceeding (as hereinafter defined) pending on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of matters or events occurring on or prior to the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the TransactionsClosing Date;
(b) all Liabilities obligations and liabilities of the Company for (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or Taxes with respect to any and all Employeesperiod, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(dii) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the unpaid Taxes of any Person (other Person than the Company) under Treasury Regulations Section 1.1502-6 (or any similar provision provisions of state, local or foreign Lawlaw), as a transferee of or successorsuccessor to the Company, by Contract contract or otherwiseotherwise or (iii) except obligations or liabilities of the Company for Taxes for which Buyer is liable federal, state, county, local, foreign or other income, sales, use or transfer taxes or assessments (including interest and penalties thereon, if any) of any kind whatsoever arising from, based upon or related to the sale, transfer or delivery of the Assets pursuant to Section 2.2this Agreement;
(c) obligations and liabilities of the Company under the contracts and agreements listed in SCHEDULE 1.5(C) attached hereto;
(d) any contingent liabilities of the Company of any kind arising or existing on or prior to the Closing Date, including, but not limited to, claims, proceedings or causes of action which are currently or hereafter become the subject of claims, assertions, litigation or arbitration, including, but not limited to those relating to penalties for late deliveries, quality defaults or product liability procedures;
(e) all Liabilities sponsorship, debts, obligations or liabilities of the Company under any pension, profit sharing, savings, retirement, health, medical, life, disability, dental, deferred compensation, stock option, bonus, incentive, severance pay, group insurance or other similar employee plans or arrangements, or under any policies, handbooks, or custom or practice, collective bargaining agreement, or any employment agreements, whether express or implied, applicable to any broker, finder or agent or similar intermediary for of the Company's employees at any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; andtime;
(f) all Liabilities related to the Acquired Assets any liability or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any obligation of the Acquired Assets, to the extent Company arising out of any wrongful or attributable to unlawful violation or infringement of any period Intellectual Property of any person or entity occurring on or prior to the ClosingClosing Date;
(g) any obligations or liabilities, if any, of the Company to any Shareholders in respect of money loaned by the Shareholders to the Company; provided that in and
(h) any liabilities or obligations of the event Company arising out of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlor relating to the Excluded Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Return on Investment Corp)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement to the contrary, Buyer Buyers are assuming only the Assumed Liabilities and are not assuming any other liability or obligation of Sellers (nor or any predecessor owner of its Affiliatesall or part of the U.S. ProTurf Business) of whatever nature whether presently in existence or arising hereafter, vested or unvested, contingent or fixed, actual or potential, known or unknown. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of Sellers (all such liabilities and obligations not and does not assumebeing assumed being herein referred to as the "Excluded Liabilities"). Notwithstanding anything to the contrary in this Section 2.08, and shall be deemed not to have assumed and shall not be obligated to paywithout limitation, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any each of the following (collectively, the “shall be Excluded Liabilities”):Liabilities for purposes of this Agreement:
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to except as contemplated by or set forth in Article IX, any current liabilities or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way obligations relating to any Benefit Plan and any employee or agent benefits, wages, salaries, commissions, bonuses, incentives and/or other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period arrangements existing on or prior to the ClosingClosing Date, including, without limitation, retirement, pension and/or unemployment compensation, workers' compensation and/or similar type benefits;
(ii) any Product Liability;
(iii) any Environmental Liability;
(iv) any Claim against or relating to the U.S. ProTurf Business that arose prior to the Closing Date; provided that in or
(v) the event obligations and liabilities of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlSellers arising under the Excluded Contracts.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to All liabilities (which includes all types of debts or obligations) of Seller or the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers Business that are not Assumed expressly assumed by Buyer pursuant to, and as specifically set forth in Section 2.1 above, shall remain the sole and exclusive obligation and duty of Seller ("Excluded Liabilities"). "Excluded Liabilities" specifically include, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectivelybut are not limited to, the “Excluded Liabilities”):
following: (i) any indebtedness for borrowed money; (ii) any claims or potential claims by third parties, together with all related losses, expenses, damages, amounts, attorneys' fees and court costs (collectively "Claims"), including, but not limited to, any Claims relating in any way to: (a) all costs products or services sold and expenses incurred delivered or to be incurred performed by Sellers in connection with this Agreement and the consummation of the Transactions;
Seller or Seller's agents; (b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultantactions taken by, or contractor of any omissions of, Seller or of any Subsidiary or Affiliate of any Seller or Seller's agents; and (iic) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangementsactions taken, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellersomissions of, any of their Subsidiaries Seller's customers; (iii) any Claims for federal, state, local, or Affiliatesforeign income taxes, or any ERISA Affiliate other taxes, or related interest or penalties of Seller; (iv) any Claims under any employee benefit or with respect to which welfare plan or regarding any Seller compensation, withholding taxes, or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating payroll taxes owed to or with respect to any and all Employeesemployee or agent of Seller; (v) any Claim of any past or present employee of Seller (including, and contractors without limitation, claims for accrued vacation, sick leave, or other benefits); (vi) any Claims regarding compliance with any applicable federal, state, or local law, ordinance, regulation, order, or decree in connection with any activity or omission of Sellers or any of their Subsidiaries or Affiliates arising Seller at any time before Closing;
time; (dvii) all Liabilities for any and all Taxes of Sellers legal proceedings against Seller; or (including any Liability of Sellers for the Taxes of viii) any other Person under Treasury Regulations Section 1.1502-6 (Claim or any similar provision obligation arising out of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that Closing Date except for the Assumed Liabilities, as such term is defined in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control2.1 above.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Except as expressly set forth in this Agreement to the contrarySection 2.3, Buyer (nor any CTB shall not, by virtue of its Affiliates) shall not and does not assumepurchase of the Purchxxxx Xxxxxx xx xtherwise in connection with the Transactions, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge assume or in any other manner be liable or become responsible for any Liabilities (the "Excluded Liabilities") of Sellers that are not Assumed Liabilities, whether existing any Selling Entity of any nature whatsoever arising on or before the Closing Date or arising thereafterDate, including including, but not limited to (a) Liabilities relating to or arising out of any of the following (collectivelySelling Entity, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and Purchased Assets, the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers Business (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (event, condition, occurrence, action, inaction or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission transaction relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assetsforegoing) or the actions of any Selling Entity's officers, employees, representatives or agents prior to or at the Closing, (b) Liabilities for any Taxes (other than what is provided in Section 2.3(b)), (c) Liabilities relating to any claims for health care or other welfare benefits, (d) Liabilities relating to any violation of any Law, (e) tort Liabilities, (f) Liabilities from claims arising under any Contract or Permit not assumed by CTB pursuant hereto or included in any arrangement set forth in Section 2.5; (g) Liabilities for claims arising under any Contract or Permit to the extent arising such claim is based on events, conditions, acts or attributable to omissions of any period on or Person which occurred prior to or at the Closing; provided that in (h) contingent Liabilities unknown to the event Selling Entities at the Closing; and (i) Liabilities for any accounts payable existing as of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlthe Closing Date or indebtedness for money borrowed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bouncebacktechnologies Com Inc)
Excluded Liabilities. Notwithstanding anything Except as expressly set forth above in this Agreement to the contrarySection 2.2, Buyer (nor is not assuming any of its Affiliates) shall not and does not assumeliabilities or obligations of, or related to, Seller, the Assets or the Business, and shall be deemed not Seller agrees to have pay and discharge all such non-assumed liabilities and shall not be obligated to payobligations as and when the same become due and payable. Without limiting the generality of the foregoing, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not than the Assumed Liabilities, whether existing on the Closing Date in no event shall Buyer assume or arising thereafter, including Liabilities relating to incur any liability or arising out obligation under Section 2.2 or Section 2.3 or otherwise in respect of any of the following (collectively, the “Excluded Liabilities”):following:
(a) all costs and expenses incurred any liability or obligation under any Contract arising or accruing or relating to be incurred by Sellers in connection with this Agreement and any period prior to the consummation of Closing Date, whether related to the TransactionsAssets or otherwise;
(a) except where otherwise provided, any indebtedness for borrowed money, whether related to the Assets or otherwise;
(b) all Liabilities (i) related to any current breach of contract, product liability or former employee (including the Employees)similar claim, candidate for employmentregardless of when made or asserted, officer, director, consultantwhich accrued or which arises out of, or contractor of is based upon, any act, express or implied representation, warranty, agreement or guarantee made by Seller or alleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of any Subsidiary or Affiliate of any Seller or (ii) arising underlaw, to the extent in connection with any service performed or in any way relating to any Benefit Plan and any other compensation or benefit plansproduct designed, programs, arrangementssold, or agreements leased by or on behalf of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary OWW on or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of prior to the BusinessClosing Date;
(c) except as provided under Section 2.2(d)any federal, all Liabilities arising out of, relating to state or local income or other Tax (i) payable with respect to the Business, Assets, properties or operations of Seller or OWW for any period prior to the Closing Date, or (ii) incident to or arising as a consequence of the consummation by Seller of this Agreement and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthe transactions contemplated hereby;
(d) all Liabilities for any and all Taxes liability or obligation to any employees, agents or independent contractors of Sellers (including Seller or under any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2benefit arrangement with respect thereto;
(e) all Liabilities any Subscriber or other customer claims, charge-backs, or related liability or obligations that are outside of those incurred in the Ordinary Course of Business, and are attributable to periods and arising from sales of goods or services occurring prior to the Closing Date provided however that product returns in the Ordinary Course of Business consistent with past practice of Seller and the Business shall be assumed by the Buyer;
(f) any brokerliability or obligation of Seller arising or incurred in connection with the negotiation, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to preparation and execution of this Agreement and the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblehereby and fees and expenses; and
(fg) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmentalof counsel, Health, accountants and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlother experts.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (KeyOn Communications Holdings Inc.)
Excluded Liabilities. Notwithstanding anything in any provision of this Agreement or any Conveyance Instrument to the contrary, Buyer the Company is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Contributor (nor or any predecessor owner of all or part of its Affiliatesbusiness and assets) shall not and does not assumeof whatever nature whether presently in existence or arising hereafter, and all such other liabilities and obligations shall be deemed retained by and remain liabilities of Contributor (all of such liabilities and obligations not being assumed hereinafter referred to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, as the “Excluded Liabilities”):) and, notwithstanding anything to the contrary in this Section 1.4, none of the following shall be “Assumed Liabilities” for purposes of this Agreement:
(a) all costs and expenses Any liability for any taxes, fees or assessments by any federal, state or local governmental authority (“Taxes”) arising from or with respect to the Assets or the operations of the Business incurred or attributable to be incurred by Sellers in connection with this Agreement and any period prior to the consummation of Contribution Date (the Transactions“Excluded Tax Liabilities”);
(b) all Liabilities (i) related Any liabilities or obligations relating to employee benefits or compensation, including, without limitation, any current liabilities or former obligations under any of Contributor’s employee (including the Employees)benefit agreements, candidate for employment, officer, director, consultantplans, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;; or
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission Any liabilities relating to the transactions contemplated by this Agreement for which Excluded Assets (it being understood that any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related Tax Liability relating to the Acquired Excluded Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence shall be an Excluded Tax Liability for purposes of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlAgreement).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything All liabilities and obligations of the Seller not expressly included in the Assumed Liabilities are excluded from the transactions contemplated in this Agreement to the contraryAgreement, Buyer (nor any of its Affiliates) shall not and does not assumeincluding, and shall be deemed not to have assumed and shall not be obligated to paywithout limitation, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “"Excluded Liabilities”"):
(a) all costs and expenses incurred or deposit accounts attributed to be incurred by Sellers in connection with this Agreement and the consummation Branches as of the Transactionsclose of business on the day immediately preceding the Closing Date which are subject to any order, agreement or encumbrance that in any way restricts the payment of funds representing such account on the order of the depositor;
(b) all Liabilities (i) related to any current securities brokerage accounts or former employee (including dealer reserve accounts maintained by the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor affiliates for a customer attributed to any of the BusinessBranches;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, amounts and deposits held by the Seller relating to trust accounts or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingother customer relationships not being transferred pursuant to this Agreement;
(d) all Liabilities for liabilities associated with cashier's checks or other official bank checks and traveler's checks issued by the Seller at any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant Branches prior to Section 2.2;the Closing Date; and
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission liabilities and obligations of the Seller relating to the transactions contemplated by Xxxxxx Division that are not expressly included in the Assumed Liabilities. It is expressly understood and agreed that, except as set forth in this Agreement Agreement, along with the exhibits and schedules hereto, the Purchaser shall not assume or be liable for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assetsdebts, obligations or liabilities of the Seller of any kind and nature whatsoever including, but not limited to: any losses or liabilities due to the extent or arising from forgery, fraud, defalcation, or attributable to any period other improper act or omission occurring on or prior before the Closing Date; any tax or debt therefore (except relating to Fall & Fall Insurance); any liability for unfair practices (such as wrongful termination or employment discrimination), any liability or obligation of the Closing; provided that in the event Purchaser arising out of any conflict between Section 2.2 and this Section 2.3threatened or pending litigation, Section 2.3 will controlor any liability with respect to personal injury or property damage claims.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities or obligations of either Seller (collectively, the “Excluded Liabilities”, subject to Section 6.7):
(a) all costs and expenses incurred Obligations or liabilities arising out of or based on any violation, on or prior to be incurred by Sellers in connection with this Agreement and the consummation Closing Date, of the Transactionsany statute, law, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which either Seller is subject;
(b) all Liabilities (i) Obligations or liabilities related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessExcluded Assets;
(c) except Obligations or liabilities for Taxes assessed on the income of the Business or the Railway or the existence of any Seller as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthe Closing Date;
(d) all Liabilities for Obligations or liabilities related to any failure to maintain, fund or administer any Employee Benefit Plan in accordance with its terms and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2applicable laws and regulations;
(e) all Environmental Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to in connection with the actions or inactions of any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period Person on or prior to the ClosingClosing Date;
(f) Obligations or liabilities related to any retention letter or agreement, restricted share award agreement, bonus, deferred compensation plan, incentive compensation plan or similar Employee Benefit Plan related to periods on or prior to the Closing Date, except to the extent accrued on the Most Recent Financial Statements;
(g) Obligations or liabilities related to any Debt on the part of either Seller; provided that and
(h) Any other obligations or liabilities not expressly set forth in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlof this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (FreightCar America, Inc.)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in In connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which Agreement, neither Intellisync nor Sub shall assume or have any Seller responsibility or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related liability with respect to any Environmentalobligation or liability of SoftVision, Healthwhether direct or indirect, known or unknown, accrued or not accrued, fixed or contingent (all of such obligations and Safety Laws liabilities not so assumed being herein called the “SoftVision Excluded Liabilities”). Without limiting the generality of the foregoing, the SoftVision Excluded Liabilities shall include, without limitation, all liabilities, claims or the presence other obligations of SoftVision to any SoftVision employee (irrespective of whether he or release of, or exposure toshe becomes a Transferred Employee), any Hazardous Substance at, on, under, former employee of SoftVision or migrating to any consultants of SoftVision for the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in Closing Date, including, without limitation, insurance, workers’ compensation, and holiday, vacation, sick, regular and severance pay.
(b) In connection with the event transactions contemplated by this Agreement, SoftVision shall not assume or have any responsibility or liability with respect to any obligation or liability of Intellisync or Sub, whether direct or indirect, known or unknown, accrued or not accrued, fixed or contingent (all of such obligations and liabilities not so assumed being herein called the “Intellisync Excluded Liabilities”). Without limiting the generality of the foregoing, the Intellisync Excluded Liabilities shall include, without limitation, all liabilities, claims or other obligations of Intellisync to any conflict between Section 2.2 Transferred Employee for any period beginning after the Closing Date, including, without limitation, insurance, workers’ compensation, and this Section 2.3holiday, Section 2.3 will controlvacation, sick, regular and severance pay.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary herein, neither Buyer (nor any of its Affiliates) Affiliates shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for assume any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor (whether or not related to the Product Business) other than the Assumed Liabilities, and the Excluded Liabilities shall remain the sole obligation and responsibility of Seller and its Affiliates. For the purposes of clarity (and notwithstanding Section 2.2.1), neither Buyer nor any Affiliate of Buyer shall assume the following Liabilities of Seller or any of its Affiliates: (a) Liabilities of Seller or any of its Affiliates (i) for income Taxes; (ii) for or relating to Taxes or other Liabilities arising from the activities of Seller or its Affiliates unrelated to the Product Business or the Purchased Assets, whether arising prior to or after the Closing Date, or (iii) for or relating to Taxes with respect to the Product Business or the Purchased Assets for any Pre-Closing Tax Period, provided that, in each case ((i) through (iii)), responsibility for Apportioned Obligations shall be determined in accordance with Section 5.13.1; (b) any Liabilities of Seller or any of its Affiliates relating to accounts payable, indebtedness, legal services, accounting services, financial advisory services, investment banking services or other professional services performed in connection with the sale of the Business;
Purchased Assets; (c) except as provided under Section 2.2(d)any wages, all salaries, severance payments or other Liabilities arising out of, relating to or with respect to any and all Employees, and contractors employee of Sellers Seller or any Affiliate of their Subsidiaries Seller, including any employees hired by Buyer, except for wages, salaries and liabilities incurred for employees hired by Buyer commencing after the Closing Date; or Affiliates arising at any time before Closing;
(d) all any Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlEnvironmental Laws.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Except as expressly set forth above in this Agreement to the contrarySection 2.2, Buyer (nor is not assuming any of its Affiliates) shall not and does not assumeliabilities or obligations of, or related to, Seller, the Assets or the Business, and shall be deemed not Seller agrees to have pay and discharge all such non-assumed liabilities and shall not be obligated to payobligations as and when the same become due and payable. Without limiting the generality of the foregoing, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not than the Assumed Liabilities, whether existing on the Closing Date in no event shall Buyer assume or arising thereafter, including Liabilities relating to incur any liability or arising out obligation under Section 2.2 or Section 2.3 or otherwise in respect of any of the following (collectively, the “Excluded Liabilities”):following:
(a) all costs and expenses incurred any liability or obligation under any Contract arising or accruing or relating to be incurred by Sellers in connection with this Agreement and any period prior to the consummation of Closing Date, whether related to the TransactionsAssets or otherwise;
(b) all Liabilities (i) except where otherwise provided, any indebtedness for borrowed money, whether related to any current the Assets or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessotherwise;
(c) except as provided under Section 2.2(d)any breach of contract, all Liabilities arising product liability or similar claim, regardless of when made or asserted, which accrued or which arises out of, relating or is based upon, any act, express or implied representation, warranty, agreement or guarantee made by Seller or alleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law, to the extent in connection with respect any service performed or product designed, sold, or leased by or on behalf of Seller or Affinity on or prior to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingthe Closing Date;
(d) all Liabilities any federal, state or local income or other Tax (i) payable with respect to the Business, Assets, properties or operations of Seller or Affinity for any and all Taxes of Sellers period prior to the Closing Date, or (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (ii) incident to or any similar provision of state, local or foreign Law), arising as a transferee or successor, consequence of the consummation by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Seller of this Agreement and the transactions contemplated hereby;
(e) all Liabilities any liability or obligation to any brokeremployees, finder agents or agent independent contractors of Seller or similar intermediary for under any broker’s feebenefit arrangement with respect thereto;
(f) any Subscriber or other customer claims, finders’ fee charge-backs, or similar fee related liability or commission relating obligations that are outside of those incurred in the Ordinary Course of Business, and are attributable to periods and arising from sales of goods or services occurring prior to the Closing Date provided however that product returns in the Ordinary Course of Business consistent with past practice of Seller and the Business shall be assumed by the Buyer;
(g) any liability or obligation of Seller arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblehereby and fees and expenses; and
(fh) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmentalof counsel, Health, accountants and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlother experts.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (KeyOn Communications Holdings Inc.)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary herein contained, Buyer the Assumed Liabilities shall not include nor be deemed to include any other liabilities or obligations of Seller or the Business whatsoever (nor all of which shall be referred to as the "Excluded Liabilities"), including, without limitation:
(i) all obligations and liabilities relating to long-term indebtedness, short-term portion of long-term indebtedness and all other indebtedness for borrowed money;
(ii) all intercompany payables owed by Seller to Parent or any of its other Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):;
(aiii) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactionstransactions contemplated hereby;
(biv) subject to Section 6.08 hereof, all liabilities or obligations of Seller for Taxes related to the period prior to the Closing Date;
(v) all Liabilities (i) related salaries, wages and bonuses earned by employees of the Seller prior to any current the Closing Date; all liabilities or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor obligations of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which the Excluded Employment Agreements; all liabilities or obligations of Seller with respect to the Employee Plans; all obligations and liabilities of Seller (including, without limitation, salary and bonus obligations) under any Seller retention, stay-pay or any Subsidiary or Affiliate similar agreements with employees of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessSeller;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(dvi) all Liabilities obligations and liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (product or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating general liability claims related to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleBusiness and incurred before the Closing Date; and
(fvii) all Liabilities related to any other Damages arising under the Acquired Assets FDCA or the Business any Environmental Law arising from or related relating to any Environmentalactivities, Health, and Safety Laws or the presence of or release ofconditions, or exposure to, any Hazardous Substance at, on, under, or migrating to operations of any of the Acquired Assets, to Companies or the extent arising or attributable to any period on or Leased Real Property prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlClosing Date.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Mark Solutions Inc)
Excluded Liabilities. Notwithstanding anything in The parties hereto acknowledge and agree that all liabilities and obligations of Seller otherwise associated with the pre-Closing operations of the Business or the pre-Closing condition of the Purchased Assets which are not expressly identified as Assumed Liabilities pursuant to Section 4.01 above, including without limitation any violation of Legal Requirements, union matters, employee severance, employee medical and disability payments, judgments, product liability, broker fees or commissions, customer rebates, interest, Taxes (including uncollected or un-remitted Taxes respecting sales or use) or penalties shall be excluded from the transactions contemplated by this Agreement to the contraryAgreement, Buyer (nor any of its Affiliates) shall not and does not assumebe assumed by Buyer, and shall be deemed not to have assumed retained, performed, paid and shall not be obligated to pay, perform, discharge or discharged in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on accordance with the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following terms thereof by Seller (collectively, the “Excluded Liabilities”):
). Buyer shall forward to Seller for payment all bills, invoices and claims received for goods or services rendered to Seller for periods prior to the Closing Date which do not constitute Assumed Liabilities, and Buyer shall provide Seller with access to any Records in Buyer’s possession or control reasonably necessary for Seller to analyze and pay the same. Seller and the Members, jointly and severally, hereby agree to reimburse, indemnify and hold Buyer harmless from any and all claims, liabilities, obligations, costs or expenses (a) all including without limitation reasonable attorneys fees, court costs and other expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (iilitigation) arising under, in connection with out of or in any way relating to any Benefit Plan and any other compensation or benefit plansExcluded Liabilities, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor regardless of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlBasket.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained in this Agreement to the contrary, Buyer (nor any of its Affiliates) from and after the Closing, Seller shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of retain only the following Liabilities (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) i. except as provided under specifically listed in Section 2.2(d2.3(a), all Liabilities in connection with the conduct or operation of the Business or the use or ownership of the Purchased Assets accruing, arising out of, or relating to events, occurrences, pending or threatened litigation, acts, omissions and claims happening prior to the Closing;
ii. all Liabilities for Taxes (A) of Seller or its Affiliates, (B) arising out of or relating to Seller’s operation of the Business or ownership of the Purchased Assets during any Pre-Closing Tax Period, and (C) apportioned to Seller pursuant to Section 2.9;
iii. all Liabilities in respect of, or that constitute, Indebtedness for borrowed money;
iv. except as set forth in Section 7.1(d), (e) and (h), all Liabilities relating to the Property Employees accruing prior to the Closing, including any Liabilities with respect to the Plans (including any terminated employee benefit plans or arrangements that would meet the definition of a Plan but for the fact that such employee benefit plan or arrangement is not currently effective with respect to any and all current Property Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing);
(d) v. all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities that relate to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleExcluded Asset; and
(f) vi. all Liabilities related assumed by, retained by or agreed to the Acquired Assets be performed by Seller pursuant to this Agreement or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlother Transaction Document.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) Seller shall not and does not assume, retain and shall be deemed not to have assumed and shall not be obligated to hereafter pay, perform, satisfy and discharge or in any when due, all Liabilities other manner be liable or responsible for any Liabilities of Sellers that are not than Assumed Liabilities, whether existing on the Closing Date or arising thereafterincluding, including Liabilities relating to or arising out of any of without limitation, the following Liabilities (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred Liabilities relating to or to be incurred by Sellers in connection with this Agreement and the consummation arising out of the TransactionsExcluded Assets;
(b) all Liabilities (i) arising out of any transaction or obligation incurred by Seller on or after the Closing Date, except for Liabilities arising out of or related to any current the Business or former employee (including Business Assets to the Employees), candidate extent expressly provided for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessTransition Services Agreement;
(c) except as provided under Section 2.2(d), all Liabilities arising out offor or in connection with any dividends, relating to distributions or redemptions with respect to any and all Employees, and contractors security of Sellers Seller or any of their Subsidiaries or Affiliates arising at any time before Closingits Affiliates;
(d) all Liabilities for any expenses or fees incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the Ancillary Agreements and all Taxes the consummation of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Transactions, except as provided in Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.211.13;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission Taxes relating to or arising out of the transactions contemplated by this Agreement Business Assets or the operation of the Business prior to the Closing Date except for which any Seller or its Subsidiaries or Affiliates such Taxes that are responsible; andthe responsibility of Purchaser pursuant to Article VII;
(f) all Liabilities related to the Acquired Assets or the Business arising from or related any Liability of Seller to any Environmental, Health, and Safety Laws Business Employee or the presence former Business Employee of Seller under or release of, or exposure to, any Hazardous Substance at, on, under, or migrating with respect to any Employee Agreement or Business Employee Plan, including for severance pay and accrued vacation payments due to termination of the Acquired Assets, to the extent arising or attributable to any period employment by Seller on or prior to the ClosingClosing Date;
(g) any Liability of Seller to any Affiliate of Seller; provided and
(h) any other Liability that is not referred to specifically in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary set forth in this Agreement Agreement, except for the Assumed Liabilities, Purchaser is not assuming or agreeing to the contrarypay, Buyer (nor any of its Affiliates) shall not and does not assumeperform or discharge, and shall be deemed not to have assumed and Purchaser shall not be obligated to payliable for, performany contracts, discharge agreements, commitments or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafterSeller whatsoever, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred except as expressly provided for in Section 2.2(a) below, any Taxes or to be incurred similar charges that may become payable by Sellers in connection with this Agreement and the consummation Seller by reason of the Transactionssale and transfer of the Purchased Assets under any taxing authority or that may be imposed on Seller by reason of Seller’s receipt of the Purchase Price or relief from any of the Assumed Liabilities;
(b) all any trade accounts payable, accrued Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor other Liabilities of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor as of the BusinessClosing, whether or not such amounts are known or payable prior to the Closing;
(c) except as provided under Section 2.2(d)any Liabilities which relate to, all Liabilities arising arise out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release ofare incurred in connection with the Purchased Assets, or exposure touse, any Hazardous Substance atoperation or possession thereof, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that and
(d) any Liabilities which relate to, arise out of or are incurred in connection with any claim, litigation or other proceeding threatened or pending before the event Closing or initiated after the Closing but based on an act or omission of Seller or any conflict between Section 2.2 and this Section 2.3current or former officer, Section 2.3 will controldirector, employee or agent of Seller acting on Seller’s behalf, or the use, operation or possession of the Purchased Assets, occurring before the Closing.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement any provision hereof to the contrary, Buyer (nor any of its Affiliates) Purchaser shall not and does not assume, and shall assume nor otherwise be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities and obligations of Seller other than the Assumed Liabilities (collectively, the “Excluded Liabilities”):), which Excluded Liabilities shall remain the responsibility and obligation of Seller, and shall not be assumed by Purchaser. Without limiting the generality of the foregoing, Excluded Liabilities shall include:
(a) all costs Any liabilities for legal, accounting, audit and investment banking fees, and any other fees or expenses incurred or to be incurred by Sellers Seller in connection with the negotiation and preparation of this Agreement and the consummation sale of the TransactionsPurchased Assets to Purchaser;
(b) all Liabilities (i) related Any liabilities of Seller for Taxes, but subject to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan prorations and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessadjustments set forth herein;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, Any liabilities relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before ClosingExcluded Assets;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant Any liabilities relating to Section 2.2pending litigation;
(e) all Liabilities to any broker, finder All of Seller’s indebtedness or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating accounts payable which arose prior to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibledate of Closing; and
(f) all Liabilities related Except as expressly provided in this Agreement, (i) any liabilities. including, without limitation, back pay or fringe benefits of Seller’s Employees or any obligation under the Benefit Plans, fines, penalties, attorney’s fees and costs or other liabilities, including, without limitation, WARN liabilities, relating to the Acquired Assets or the Business arising from or related to Seller’s Employees (as defined below), (ii) any Environmental, Health, and Safety Laws or the presence of or release ofdispute with any labor organizations, or exposure to(iii) any dispute or cost liability relating thereto, with any Hazardous Substance at, on, under, past or migrating to any present employee of the Acquired Assets, to the extent Seller arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlClosing Date.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer (nor any of its Affiliates) shall is assuming only the Assumed Liabilities and is not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in assuming any other manner be liable liability or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor obligation of any Seller or of any Subsidiary or Affiliate of any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising or asserted hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of Sellers or their Affiliates (iiall such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the foregoing, none of the following shall be Assumed Liabilities for the purposes of this Agreement:
(i) any obligation or liability for Tax (i) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under from or with respect to which any Seller the Purchased Assets or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor the operation of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to Business which is incurred in or with respect attributable to any and all EmployeesPre-Closing Tax Period, and contractors (ii) imposed on Buyer pursuant to transferee or successor liability, by contract, under principles of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations law analogous to Treas. Reg. Section 1.15021.502-6 or otherwise or (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwiseiii) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating attributable to the transactions contemplated by this Agreement for which Agreement;
(ii) any liabilities or obligations of a Seller relating to employee benefits or its Subsidiaries compensation arrangements, including, without limitation, any liabilities or Affiliates are responsibleobligations under any of a Seller's employee benefit agreements, plans or other arrangements listed on Schedule 9.02; and
(fiii) all Liabilities related a Seller's obligation to provide accrued vacation pay to the Acquired Assets or the Business arising from or related to any EnvironmentalTransferred Employees, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, which obligation PASW shall satisfy in cash by direct payment to the extent arising or attributable to any period on or prior to Transferred Employees within five business days after the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any other terms, provisions or conditions in this Agreement to Agreement, the contrary, Buyer (nor any of its Affiliates) Purchaser shall not and does not assume, and shall or otherwise be deemed not responsible or liable for or obligated with respect to, the following Liabilities to have assumed and shall not be obligated to paythe extent they arise from facts, performconduct, discharge conditions or circumstances in any other manner be liable existence on or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on before the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “"Excluded Liabilities”"):
(ai) all costs any and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related owed to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer Safety-Kleen or any of its Affiliates being deemed successor (regardless of the Businesswhether arising from an intercompany loan, an intercompany transaction or otherwise);
(cii) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, ERISA Liabilities;
(iii) any and contractors all Liabilities for (a) Taxes of Sellers Safety-Kleen or Safety-Kleen Corp. or any of their Subsidiaries current or past Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for which the Taxes of any other Person Company may be liable under Treasury Regulations Section regulation section 1.1502-6 (or any analogous or similar provision of state, local or foreign Lawlaw or regulation), or (b) United States Federal income and state income and state franchise Taxes of the Company or for which the Company may be liable, whether directly or as a transferee or transferee, successor, by Contract contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(eiv) any and all Liabilities for brokerage or finder's fees payable to First Analysis in connection with the Transactions;
(v) any broker, finder or agent and all Liabilities arising under guarantees or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission instruments relating to indebtedness for borrowed money incurred by Safety-Kleen or any of its Affiliates (other than the transactions contemplated Company), other than for the Company's direct benefit, including without limitation Liabilities as a guarantor pursuant to that certain Amended and Restated Credit Agreement, dated as of April 3, 1998, by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleand among LES, Inc., Lxxxxxx Environmental Services (Canada) Ltd., and the lenders and agents thereunder (the "LES Guarantee"); and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any other provision in this Agreement Agreement, Purchaser is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Seller of whatever nature, whether presently in existence or arising hereafter (all such liabilities and obligations not being assumed being herein referred to as the "EXCLUDED LIABILITIES"), and, notwithstanding anything to the contrary, Buyer (nor the Assumed Liabilities shall not include for the purposes of this Agreement without limitation any of its Affiliatesthe following:
(i) shall not and does not assume, and shall be deemed not Any debt of Seller;
(ii) Any liability or obligation for taxes of Seller;
(iii) Any liability or obligation arising out of or relating to have assumed and shall not be obligated an Excluded Asset;
(iv) The obligations or liabilities relating to pay, perform, discharge employees or in any other manner be liable or responsible former employees of Seller for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on periods prior to the Closing Date or arising thereafterand, including Liabilities relating with respect to or arising out employees of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred Seller not hired by Sellers Buyer in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement Agreement, for which any Seller all obligations and liabilities, whether arising before, on, or its Subsidiaries or Affiliates are responsibleafter the Closing Date; and
(fv) all Liabilities related All other liabilities, obligations and expenses of any nature whatsoever, known or unknown, whether absolute, contingent or otherwise, not expressly assumed by Purchaser pursuant to the Acquired Assets or the Business arising from or related Section 1.4(a) PROVIDED, HOWEVER, that Seller shall be under no obligation to Buyer to take any action with respect to any Environmentalsuch liabilities, Health, obligations and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlexpenses.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing or commitment (written or oral) to the contrary, Buyer the Purchasers are assuming only the Assumed Liabilities and are not assuming any other liability or obligation of the Sellers (nor or any predecessors of its Affiliatesthe Sellers or any prior owners of all or part of their businesses and assets) shall not of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of the Sellers (all such liabilities and obligations not being assumed being herein referred to have assumed and shall not be obligated as the "Excluded Liabilities"). Notwithstanding anything to paythe contrary in Section 1.04, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any none of the following (collectively, shall be Assumed Liabilities for the “Excluded Liabilities”):purposes of this Agreement:
(a) all costs and expenses incurred any liability or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactionsobligation under any Environmental Laws that is not an Assumed Liability;
(b) all Liabilities (i) any liability or obligation related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessa Retained Employee;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to any liability or with respect to obligation for Designated Chapter 11 Costs and any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingcontracts related thereto;
(d) all Liabilities any liability or obligation for any and all Taxes of Sellers indebtedness for borrowed money or evidenced by bonds or notes (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Lawaccrued interest and fees with respect thereto), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any brokerliability or obligation for (i) any Tax imposed by the Code, finder (ii) any foreign, state or agent local income or similar intermediary for franchise Tax, (iii) any broker’s feeTax as a result of having been a member of an affiliated, finders’ fee consolidated, combined or similar fee or commission relating unitary group and (iv) any Tax described in clause (2) of the definition of Tax;
(i) one-half of the amounts payable to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblePost-Closing Employees pursuant to the Approved Employee Orders and (ii) $165,000 payable to Xxx Xxxxx in connection with the sale of the General Line Candy business; and
(fg) all Liabilities related any liability or obligation relating to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlan Excluded Asset.
Appears in 1 contract
Samples: Asset Purchase Agreement (Favorite Brands International Inc)
Excluded Liabilities. Notwithstanding Except for the Assumed Liabilities and anything else in this Agreement to the contrarycontrary notwithstanding, the Company shall be responsible for (i) all liabilities and obligations arising out of goods or services provided by the Company and accruing prior to the Closing Date, (ii) resulting from any failure of timely payment or performance by the Company or any breach by the Company of the Assigned Contracts occurring prior to the Closing Date, (iii) all or any liabilities arising prior to the Closing Date, or (iv) not expressly assumed by Buyer (nor any of its Affiliates) under this Agreement, and Buyer shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner way be liable or responsible for for, any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date liabilities or arising thereafter, including Liabilities relating to or arising out of any obligations of the following Company except as specifically provided in Section 2.1 (collectively, the “Excluded Liabilities”):). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) all costs any liability or obligation under contracts and expenses incurred other agreements to which the Company is a party or by or to be incurred by Sellers which it or its assets, properties or rights are bound or subject other than the Assigned Contracts (subject to the limitation on assumption set forth in Section 2.1);
(b) any liability or obligation arising out of (i) any Taxes for which the Company is responsible or any Taxes arising in connection with the Business or the Assets (or ownership thereof) for any taxable period or portion thereof ending on or prior to the Closing Date, (ii) a breach of default by the Company prior to the Closing Date under any contract or agreement, any tortious or negligent conduct by the Company whether prior to, on or after the Closing Date, (iii) any liability or obligation of the Company to any of its employees, agents or contractors, including without limitation, any employee benefit, accrued salaries and related payroll expenses, commission, or bonus (whether or not accrued), severance, change of control payment, or other liability related to the termination of any employee prior to, on or after the Closing Date and any liability attributable to the Company’s classification of a person as an exempt or non-exempt employee except to the extent such liability relates to employment of any such persons by the Buyer in the period of time after the Closing Date, or (iv) cancellations of, or returns on, sales made by the Company to the extent such cancellations or returns are not Assumed Liabilities;
(c) any liability or obligation of The Company with respect to any of the Company Employee Benefit Plans, in each case, including any liability or obligation with respect to such Employee Benefit Plan and any liability for any payments of any kind whatsoever under the Employee Retirement Income Security Act of 1974, as amended, or any comparable laws;
(d) any liability or obligation owed by the Company to any Affiliate of the Company; or
(e) any liability or obligation of the Company arising out of or in connection with the preparation of this Agreement and the consummation and performance of the Transactions;
(b) all Liabilities Contemplated Transactions whether or not such transactions are consummated, including, but not limited to, (i) related to any current or former employee (including Tax liability of the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller Company so arising or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect liability to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor the Company may become subject as a result of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to fact that the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to being effected without compliance with the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event provisions of any conflict between Section 2.2 bulk sales act or any similar statute as enacted in any jurisdiction. The Company shall discharge and satisfy in full when due all liabilities and obligations not expressly assumed by Buyer pursuant to this Section 2.3, Section 2.3 will controlAgreement.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to Except for the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on Purchaser does not assume or agree to pay any liability or obligation of Seller, direct or indirect, known or unknown, absolute or contingent, contractual or otherwise, including, without limitation, liabilities, obligations or responsibilities under Environmental Laws (all such liabilities not being assumed by Purchaser being referred to herein as the "Excluded Liabilities"). Seller shall remain responsible for the Excluded Liabilities and shall indemnify Purchaser with respect thereto to the extent provided in Section 10.2 hereof. Without in any manner limiting the foregoing, it shall be expressly understood that, except as otherwise expressly provided in this Agreement, Purchaser shall not at the Closing assume (a) any obligation under any employee benefit or welfare plan sponsored in whole or in part by the Seller and relating to the Newspapers (including but not limited to worker's compensation and other health and welfare plans), or any other obligation pertaining in any manner to any employees or former employees of the Newspapers or their dependents, (b) any federal, state or local tax liability of the Seller relating to the Newspapers or the Purchased Assets, (c) any liability arising out of the operations of the Newspapers prior to the Closing or arising prior to the Closing with respect to the Purchased Assets, (d) any long term debt or capital lease obligations, or any current portions related thereto, (e) any obligation under any insurance policy relating to the Newspapers, their employees or former employees, or their dependents, or the Purchased Assets, (f) any liability payable to any Affiliate of Seller, including but not limited to the "head office account", or any liability relating to accrued payroll, including commissions, carrier tips, benefit plan contributions and accrued payroll taxes, with respect to work performed prior to the Closing Date or arising thereafter, including Liabilities relating to or arising out from terminations of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period employment on or prior to the Closing; provided that Closing Date, (g) any liability for the remedial work described in the event August 6, 1996 estimate from Inspection & Valuation International relating to the San Gabrxxx Xxxley Tribune building which is appended as part of any conflict between Section 2.2 of the Disclosure Schedule and any liability to any contractors or other persons for unpaid fees for services or materials furnished, or work performed with respect to, that facility prior to the Closing or (h) any lease liability with respect to the automobiles described in Section 1.3(h) of this Section 2.3, Section 2.3 will controlAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Garden State Newspapers Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to Except for the contraryAssumed Liabilities, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities Liability of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following Seller (collectively, the “"Excluded Liabilities”):"). Without limiting the foregoing, Seller shall retain and be responsible for, and Buyer shall not be obligated to assume, and does not assume, any Liability at any time arising from or attributable to:
(a) all costs and expenses incurred Any assets, properties or to be incurred by Sellers Contracts that are not included in connection with this Agreement and the consummation of the TransactionsPurchased Assets;
(b) all Liabilities Taxes attributable to or imposed upon Seller, or attributable to or imposed upon the Purchased Assets or the Business for the Pre-Closing Period (i) including, without limitation, any taxes or liabilities related to Bulk Sales or Bulk Transfers) and any current or former employee (including the Employees)and all penalties, candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, liabilities in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessthereof;
(c) except as provided under Section 2.2(d)Any Liability related to ERISA compliance, all Liabilities arising out ofemployment and labor relations, relating to or with respect to environmental law compliance and any and all Employeespenalties, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closingliabilities in connection thereof;
(d) all Liabilities for Any Liability under any and all Taxes intercompany loans made by any Affiliates of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant Seller to Section 2.2;Seller.
(e) all Liabilities Any legal proceeding initiated at any time, to the extent related to any broker, finder action or agent omission on or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating prior to the transactions contemplated by this Agreement Closing Date, including any Liability for which (i) infringement or misappropriation of Intellectual Property Rights; or (ii) violations of any Seller or its Subsidiaries or Affiliates are responsibleLegal Requirements; and
(f) all Liabilities related to the Acquired Assets Any Seller Benefit Plans or the Business arising from any employee group medical, dental or related to life insurance plans or any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlother employee matter.
Appears in 1 contract
Samples: Asset Purchase Agreement (Net Element International, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary set forth in this Agreement Agreement, the Parties hereto expressly agree that the Buyer shall not assume or otherwise become liable for any obligation or liability of the Company or relating to the contrarybusiness, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge the properties or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following Purchased Assets, absolute or contingent, known or unknown, other than the Assumed Liabilities (collectively, such obligations or liabilities other than the Assumed Liabilities are hereinafter referred to as the “Excluded Liabilities”):
). Without limiting the foregoing, the Excluded Liabilities shall be deemed to include any liability or obligation of the Company (ai) all costs and expenses arising under this Agreement; (ii) relating to any default under any Assumed Liability to the extent such default existed at or prior to the Closing; (iii) incurred or to be incurred by Sellers in connection with this Agreement and the consummation any breach of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees)contract, candidate for employmentbreach of warranty, officertort, directorviolation of law, consultantaction, suit, or contractor of any Seller other legal or of any Subsidiary administrative proceedings or Affiliate of any Seller or (ii) governmental investigation arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee result of events occurring or successor, by Contract facts or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent circumstances arising or attributable to any period existing on or prior to the Closing; provided (iv) for Taxes arising or accruing prior to the Closing, including (a) any Taxes arising as a result of the operation of the business, ownership of the Purchased Assets or use or occupancy of the properties of the Company on or prior to the Closing, (b) any Taxes that will arise as a result of the sale of the business and Purchased Assets pursuant to this Agreement, and (c) any deferred Taxes of any nature; (v) under any contract that is not expressly an Assumed Liability or an Assumed Contract (as defined below); (vi) with respect to any employee of the Company (whether arising before, on or after the Closing) relating to or arising out of, or in connection with their employment by the Company at any time including, without limitation, any payroll or salary, any employee benefit plan, deferred compensation plan, or any other plans or arrangements for the benefit of any employees of the Company including but not limited to unfunded pension liabilities, and accrued salary, payroll, vacation, and other accrued compensation and benefits owed to employees; (vii) any Indebtedness For Borrowed Money; (viii) any and all expenses, costs, damages, liabilities, or obligations (including, without limitation, fees and expenses of counsel) incurred by, under or pursuant to any violation of Environmental Laws (as defined in Section 3(t)) or related to the Discharge (as defined in Section 3(t)), Handling (as defined in Section 3(t)), presence or clean up of Hazardous Substances (as defined in Section 3(t)) arising as a result of events occurring or facts or circumstances arising or existing on or prior to the Closing (whether or not in the event Ordinary Course of any conflict between Section 2.2 Business and this Section 2.3, Section 2.3 will controlwhether or not set forth on the Disclosure Schedule); (ix) all payables of the business outstanding or arising prior to Closing; (x) all obligations involving or related to the Excluded Assets; and (xi) all Company Transaction Expenses and Change of Control Payments.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement All claims against and liabilities and obligations of Seller not specifically assumed by Buyer pursuant to Section 2.3, including, without limitation, the contraryfollowing claims against and liabilities of Seller (the "Excluded Liabilities"), Buyer (nor any of its Affiliates) which are excluded, shall not and does not assumebe assumed or discharged by Buyer, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or discharged in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):full when due by Seller:
(a) all costs and expenses incurred or Any liabilities to be incurred by Sellers in connection with this Agreement and the consummation of extent not attributable to the TransactionsPurchased Assets;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate Any liability of Seller for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) Taxes arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed prior to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor from the sale of the BusinessPurchased Assets under this Agreement;
(c) except as provided Any liabilities for or related to indebtedness of Seller to banks, financial institutions, or other Persons;
(d) Any liabilities of Seller under Section 2.2(d)any leases, all Liabilities arising out ofcontracts, relating insurance policies, commitments, sales orders, or purchase orders that are not assigned to Buyer pursuant to this Agreement or to the extent that such liabilities arise or are attributable to events occurring prior to the Closing;
(e) Any liabilities of Seller for or with respect to any employees of Seller, including, without limitation, any liabilities for accrued and all Employeesunpaid wages, and contractors of Sellers salaries, bonuses, commissions, sick leave, vacation time, or any of their Subsidiaries compensated time off owing by Seller to its employees or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any brokercompensation, finder collective bargaining, pension, retirement, severance, termination, or agent other benefit plan, agreement or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblearrangement; and
(f) all Liabilities related Any other liabilities of Seller that are attributable to the Acquired Assets or the Business arising arise from or related to any Environmentalfacts, Health, and Safety Laws or the presence of or release ofevents, or exposure to, any Hazardous Substance at, on, under, conditions that occurred or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or came into existence prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated responsible to pay, perform, perform or discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities or obligations of Seller (collectively, the “Excluded Liabilities”):
(ai) all costs and expenses incurred any liabilities or obligations relating to be incurred by Sellers in connection with this Agreement and the consummation or arising out of the TransactionsExcluded Assets;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with any liabilities or in any way obligations for (A) Taxes relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to the Purchased Assets or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all the Assumed Liabilities for any taxable period ending on or prior to the Closing Date and all (B) any other Taxes of Sellers Seller for any taxable period (including any Liability of Sellers for the Taxes of any in each case, other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for than Taxes for which Buyer is liable responsible pursuant to Section 2.28.1);
(eiii) all Liabilities any liability or obligation under any Seller Benefit Plan;
(iv) any liability or obligation with respect to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating employees of Seller terminated prior to the transactions contemplated Closing Date, including, without limitation, any severance pay due or owing to such terminated employees;
(v) any liability or obligation of Seller for personal injury, property damage or intellectual property infringement arising or incurred with respect to products manufactured or sold or services provided by this Agreement for which Seller prior to the Closing Date (other than warranty obligations) in connection with the operation of the Business or otherwise;
(vi) any liabilities or obligations of Seller or its Subsidiaries the Business under any Environmental Laws;
(vii) any liabilities or Affiliates are responsibleobligations to the extent constituting Transaction Expenses or Indebtedness; and
(fviii) all Liabilities related Seller’s liabilities or obligations under this Agreement or any other agreements entered into by Seller pursuant to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlAgreement.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Seller or any of its Affiliates of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of Seller (nor all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the effect of the foregoing and notwithstanding anything to the contrary in this Agreement or any other writing, all of the following shall be Excluded Liabilities:
(a) any Indebtedness of Seller or any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current liability or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor obligation of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including Taxes; provided that any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to transfer taxes incurred in connection with the transactions contemplated by this Agreement for which shall be paid in the manner set forth in Section 9.02 hereof;
(c) any liability or obligation of Seller or any of its Subsidiaries Affiliates relating to employee compensation, employee benefits or similar matters;
(d) any liability or obligation whether presently existing or hereafter arising relating to fees, commissions or expenses owed to any broker, finder, investment banker, accountant, attorney or other intermediary or advisor employed by Seller or any of its Affiliates are responsiblein connection with the transactions contemplated by this Agreement; and
(fe) all Liabilities related to the Acquired Assets any liability or the Business arising from obligation of Seller or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of its Affiliates to Buyer, JSC or any of their respective Affiliates, including without limitation the Acquired Assets, liabilities and obligations of Seller to Buyer under the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlOperating Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Jefferson Smurfit Corp /De/)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Seller or any Affiliate of Seller (nor or any predecessor owner of all or part of its Affiliatesbusiness and assets) shall not of whatever nature whether presently in existence or arising or asserted hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of Seller or such Affiliate (all such liabilities and obligations not being assumed being herein referred to have assumed and shall not be obligated to payas the "EXCLUDED LIABILITIES"). Without limiting the foregoing, perform, discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any each of the following (collectively, shall be Excluded Liabilities for the “Excluded Liabilities”):purposes of this Agreement:
(a) all costs and expenses incurred any obligation or liability for Tax arising from or with respect to be incurred by Sellers in connection with this Agreement and the consummation Purchased Assets or the operation of the TransactionsPGTS Business or which is otherwise imposed on Seller or any of its Affiliates that are attributable to the Pre-Closing Tax Period;
(b) all Liabilities (i) related to any current liabilities or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way obligations relating to any Benefit Plan and any other Seller employee benefits or Seller compensation or benefit plans, programs, arrangements, including, without limitation, any liabilities or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by obligations under any of Sellers, any of their Subsidiaries Seller's Benefit Arrangements or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessEmployee Plan;
(c) except as provided under Section 2.2(d)any action, all Liabilities arising out ofsuit, relating investigation or proceeding pending against Seller or in respect of the PGTS Business and any action, suit, investigation or proceeding commenced after the date hereof in respect of the conduct of the PGTS Business prior to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (liability or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant obligation relating to Section 2.2;an Excluded Asset; and
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlEnvironmental Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Parent or Sellers (nor or any predecessor of its AffiliatesParent or Sellers or any prior owner of all or part of Parent or Seller’s businesses and assets) shall not of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and does not assume, and obligations shall be deemed retained by and remain obligations and liabilities of the applicable Seller (all such liabilities and obligations not being assumed being herein referred to have assumed as the “Excluded Liabilities”), and, notwithstanding anything to the contrary in Section 2.03, none of the following shall be Assumed Liabilities for the purposes of this Agreement:
(a) any liability or obligation under or with respect to any Contract or Permit required by the terms thereof to be discharged on or prior to the Effective Time;
(b) any liability or obligation for which the applicable Seller has already received the partial or full benefit of the asset to which such liability or obligation relates, but only to the extent of such benefit received;
(c) any liability or obligation for borrowed money including interest and shall not be obligated to pay, perform, discharge fees;
(d) any liability or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities obligation relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Assets;
(e) all Liabilities to any broker, finder Environmental Liabilities;
(f) any liability or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligation relating to vacation, bonuses and other employee-related benefits including either Seller stay bonuses pursuant to Section 8.07 earned or put into effect prior to the transactions contemplated by this Agreement for which Closing Date;
(g) any Seller Tax liability or its Subsidiaries or Affiliates are responsibleobligation (except as expressly provided in Section 9.02); and
(fh) all Liabilities related any liability or obligation relating to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event out of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlEmployee Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sinclair Broadcast Group Inc)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated responsible to pay, perform, perform or discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities or obligations of Seller (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities ): (i) related any liabilities or obligations relating to any current or former employee (including arising out of the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or Excluded Assets; (ii) arising under, in connection with any liabilities or in any way obligations for (A) Taxes relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to the Purchased Assets or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all the Assumed Liabilities for any taxable period ending on or prior to the Closing Date and all (B) any other Taxes of Sellers Seller for any taxable period (including any Liability of Sellers for the Taxes of any in each case, other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for than Taxes for which Buyer is liable responsible pursuant to Section 2.2;
8.1); (eiii) all Liabilities any liability or obligation under any Seller Benefit Plan; (iv) any liability or obligation with respect to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating employees of Seller terminated prior to the transactions contemplated Closing Date, including, without limitation, any severance pay due or owing to such terminated employees; (v) any liability or obligation of Seller for personal injury, property damage or intellectual property infringement arising or incurred with respect to products manufactured or sold or services provided by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related prior to the Acquired Assets Closing Date (other than warranty obligations) in connection with the operation of the Business or otherwise; (vi) any liabilities or obligations of Seller or the Business arising from under any Environmental Laws; (vii) any liabilities or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, obligations to the extent arising constituting Transaction Expenses or attributable Indebtedness; and (viii) Seller’s liabilities or obligations under this Agreement or any other agreements entered into by Seller pursuant to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything to the contrary in this Agreement Agreement, none of Purchaser or any other USI Company shall assume or be required to perform, pay or discharge any, and the Seller Parties shall remain unconditionally liable for all, of the Seller Parties’ debts, obligations, liabilities and commitments, known or unknown, including, without limitation, (a) any and all debts, obligations, liabilities or commitments relating to or arising out of the operation of the Company Business or the ownership of the Acquired Assets prior to the contraryEffective Time (and including, Buyer (nor but not limited to, any liabilities or obligations of its Affiliates) shall not and does not assumethe Seller Parties for Taxes, any Taxes relating to the ownership or operation of the Acquired Assets on or prior to the Effective Time, any other Taxes that are the responsibility of Seller pursuant to Section 8.1, and shall any debts, obligations, liabilities or commitments that may be deemed not to have assumed and shall not be obligated to pay, perform, discharge imposed on Purchaser or in any other manner be liable USI Company under a de facto merger, successor transferee, bulk sale or responsible for any Liabilities similar theory, absolute, contingent or otherwise), (b) all debts, obligations, liabilities or commitments, including all defense costs and legal fees, relating to or arising out of Sellers the Excluded Cases, including the obligation to defend and indemnify Xxxxxxx Xxxx in connection therewith, and (c) those liabilities and obligations set forth in Section 7.4(d), in each case other than those that are expressly and specifically included in the Assumed Liabilities. All such debts, obligations, liabilities and commitments that are not Assumed Liabilities, whether existing including, but not limited to, those liabilities described above and those set forth on the Closing Date or arising thereafter, including Liabilities relating to or Schedule 1.4 and any liabilities arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior Excluded Asset, are referred to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlas “Excluded Liabilities.”
Appears in 1 contract
Samples: Asset Purchase Agreement (Northwest Bancshares, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any agreement, document, certificate or instrument being delivered pursuant to this Agreement (collectively, the contrary"Transaction Documents"), and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents or on any Schedule or Exhibit hereto or thereto, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated assume or agree to pay, perform, perform or discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Excluded Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively. As used herein, the “term "Excluded Liabilities”):
(a) " means any and all costs and expenses incurred debts, liabilities or to be incurred by Sellers in connection with this Agreement and the consummation obligations of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Employee Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind or nature whatsoever, other than the Assumed Liabilities described in Section 2.1, and the Excluded Liabilities shall include, without limitation (including all assetsa) any suits or causes of action relating, trustsdirectly or indirectly, insurance policies and administration service contracts related thereto) to Tax, patent, trademark, copyright, labor, employment, environmental or product liability issues arising out of or relating to the conduct of Seller at any time maintainedprior to, sponsoredon or after the Closing Date, contributed to or required to be contributed to (b) any claims by any third parties relating directly or indirectly to any audit or investigation of SellersSeller by the Xxxxx Xxx Agency for any period prior to the Closing Date, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of except for the Business;
Assumed Fox Liability (c) except as provided under Section 2.2(d)any liabilities whatsoever relating, all Liabilities arising out ofdirectly or indirectly, relating to or with respect to any Excluded Assets and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes debts, liabilities or obligations of any other Person under Treasury Regulations Section 1.1502-6 (kind or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission nature whatsoever relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlAffiliated Companies.
Appears in 1 contract
Samples: Asset Purchase Agreement (Platinum Entertainment Inc)
Excluded Liabilities. v Notwithstanding anything any provision in this Agreement or any other writing to the contrary, the Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of Xyz or any Affiliate of Xyz (nor or any predecessor owner of all or part of its Affiliatesbusiness and assets) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or of whatever nature whether presently in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date existence or arising thereafter, including Liabilities relating or asserted hereafter. All such other liabilities and obligations will be retained by and remain obligations and liabilities of Xyz or its Affiliates (all such liabilities and obligations not being assumed being herein referred to or arising out of any of the following (collectively, as the “Excluded Liabilities”):). Without limiting the foregoing, none of the following will be Assumed Liabilities for the purposes of this Agreement:
(a) all costs and expenses incurred or except to be incurred by Sellers in connection with this Agreement and the consummation extent of the Transactionsreserve therefor on the Closing Balance Sheet, any and all liabilities and obligations of Xyz for Taxes that relate to the period ending with the close of business on the day preceding the Closing Date, whether or not such Taxes arise or are asserted before or after the Closing Date (including any Taxes that arise as a result of the transactions contemplated by this Agreement);
(b) all Liabilities (i) related except to any current or former employee (including the Employeesextent provided in [Article [●] and] Section 1.3(e), candidate for employment, officer, director, consultant, any liabilities or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way obligations relating to employee benefits or compensation arrangements existing as of the close of business on the day preceding the Closing Date, including, without limitation, any Benefit Plan and any other compensation liabilities or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by obligations under any of SellersXyz’s employee benefit agreements, any of their Subsidiaries plans or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor other arrangements listed in Section [●] of the BusinessXyz Disclosure Schedule;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;Environmental Liabilities; and
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (liability or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligation relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlan Excluded Asset.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, assume and shall be deemed not to have assumed and shall will not be obligated to pay, perform, or otherwise discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following liabilities or obligations (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred any liabilities or obligations of Seller to be incurred by Sellers in connection with this Agreement and the consummation of the Transactionsextent related to any Excluded Assets;
(b) all Liabilities (i) related any liabilities or obligations of Seller for any breach or default by Seller prior to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or AffiliatesEffective Time, or any ERISA Affiliate event prior to the Effective Time, which after the giving of notice or passage of time or both would constitute a default or breach by Seller, of or under the Business Agreements, Franchises, the Transferable Permits, or with respect the Transferable Environmental Permits, except to which any Seller the extent that such liability or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on obligation is taken into account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of in determining the BusinessAdjustment Amount;
(c) except as provided under Section 2.2(dall trade accounts payable and other accrued and unpaid current expenses in respect of goods and services incurred by or for the Business in the ordinary course of business to the extent attributable to the period prior to the Effective Time (the “Accounts Payable”), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities any liabilities or obligations of Seller in respect of indebtedness for borrowed money;
(e) any and all liabilities or obligations in respect of Taxes of Sellers (including Seller or any Liability Tax Affiliate of Sellers Seller, or any liability of Seller for the unpaid Taxes of any other Person under Treasury Regulations Section Regulation section 1.1502-6 (or any similar provision of state, local local, or foreign Law), law) as a transferee or successor, by Contract contract or otherwise) , except for Taxes for which Buyer is liable pursuant to Section 2.23.4 or Section 7.7;
(ef) all Liabilities any obligations of Seller for wages, employment Taxes, or severance pay to the extent attributable to the period prior to the Effective Time (except, with respect to vacation days and severance pay, as otherwise provided in Section 7.9);
(g) except for the Assumed Environmental Liabilities, (i) any liabilities or obligations arising from any lawsuit (including any workers compensation claim) against Seller involving the Business filed prior to the Effective Time, (ii) any liabilities or obligations arising from any lawsuit (including any workers compensation claim) arising STLD01-1185616-10 MICHIGAN GAS from an Actionable Incident related to the Purchased Assets or the Business which occurred prior to the Effective Time, or (iii) any criminal fines or penalties imposed by a Governmental Entity resulting from (A) an investigation or proceeding before a Governmental Entity regarding acts which occurred prior to the Effective Time, or (B) intentional fraud by Seller or its Affiliates prior to the Effective Time;
(h) except as otherwise provided in Section 7.9, any liability or obligation of Seller or an ERISA Affiliate of Seller under or in connection with any of the Benefit Plans, including under any deferred compensation arrangement or severance policy or any obligation to make any parachute or retention payment;
(i) any grievance arising out of or under any Collective Bargaining Agreement, or other collective bargaining agreement applicable to any brokerof the Business Employees, finder prior to the Effective Time, and except as provided in Section 7.9, any other liabilities or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligations of Seller relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination, by Seller of any individual, to the extent the circumstances giving rise to the liability or obligation occurred prior to the Effective Time;
(j) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection in herewith, and any of the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsiblehereby and thereby; and
(fk) all Liabilities related to the Acquired Assets amount of any disallowance (whether reflected in a required rate adjustment or the Business arising from a denial of a requested rate adjustment or related to otherwise affecting Buyer) in any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assetsgas cost recovery proceeding, to the extent arising or attributable to any period on or the disallowance results from a finding by the PSC of an imprudent gas decision made by Seller prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlEffective Time.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in any other provision of this Agreement to the contraryAgreement, Buyer (nor any of its Affiliates) shall not and does not assume, and shall assume or be deemed not to have assumed and shall not bound by or be obligated to pay, perform, discharge or in any other manner be liable or responsible for any Liabilities duties, responsibilities, commitments, expenses, obligations or liabilities of Sellers that are not or relating to the Transferred Assets (or which may be asserted against or imposed upon Buyer as a successor or transferee of Sellers, as an acquirer of the Transferred Assets or as a matter of Law) of any kind or nature, fixed or contingent, known or unknown, other than the Assumed Liabilities, whether existing on the Closing Date or arising thereafterincluding, including Liabilities relating to or arising out of any of without limitation, the following (collectively, the “Excluded Liabilities”):
(ai) all costs any Liability of Sellers in respect of any Taxes;
(ii) any Liability of Sellers under any Contract or Lease that is not an Assumed Contract or Lease;
(iii) except for the Cure Costs assumed by Buyer pursuant to Section 1.1(c)(ii), any Liability of Sellers relating to and expenses incurred arising from Sellers’ operation of the Transferred Assets prior to the Closing;
(iv) any Liability of Sellers arising out of or resulting from their compliance or noncompliance with any Law;
(v) any Liability of Sellers arising out of or related to be incurred by any Legal Proceeding against it and that was asserted on or prior to the Closing Date;
(vi) any Liability of Sellers arising under or in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultantEmployee Plans of, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to maintained or required to be contributed to maintained, by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(cvii) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of to pay any other Person under Treasury Regulations Section 1.1502-6 (fees or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities commission to any broker, broker or finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to in connection with the transactions contemplated by this Agreement for which Agreement;
(viii) any Seller Liability to the extent relating to any Excluded Asset or its Subsidiaries or Affiliates are responsiblethat is not an Assumed Liability; and
(fix) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that Liability not expressly assumed by Buyer in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlAgreement.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything the provisions of Section 1.6 or any other provisions in this Agreement to the contrary, Buyer (nor any of its Affiliates) Purchaser shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated responsible to pay, performperform or discharge any liabilities of Seller of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”), discharge and the Seller shall pay and remain responsible for all such Excluded Liabilities. Without limiting the generality of this Section 1.7, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any liability of Seller arising from, or in any other manner be liable or responsible for any Liabilities connection with, the conduct of Sellers that are not Assumed Liabilities, whether existing on the Business prior to the Closing Date or the ownership of the Purchased Assets by Seller prior to the Closing, including, without limitation, any such liabilities arising thereafterby reason of any violation or claimed violation by Seller, including Liabilities relating by acts or events or omissions arising or occurring prior to the Closing, of any federal, state or local law, rule, regulation, ordinance or any requirement of any governmental body;
(b) to the extent not covered by any applicable manufacturer’s warranty, any warranty liability of Seller or similar obligation of Seller arising from products sold or services rendered prior to the Closing;
(c) any liability of Seller related to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before ClosingAssets;
(d) all any liability for (i) any taxes required by law to be paid by Seller relating to the Business, the Purchased Assets or the Assumed Liabilities for any and all Taxes taxable period ending on or before the Closing Date; (ii) any taxes that arise out of Sellers the consummation of the transactions contemplated hereby or that are the responsibility of Seller under Section 7.4; or (iii) other taxes of Seller of any kind or description (including any Liability liability for taxes of Sellers for Seller that becomes a liability of Purchaser under the Taxes principles of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, successor liability or otherwise by Contract operation of contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2law);
(e) all Liabilities to any broker, finder or agent or similar intermediary liability of Seller for any broker’s feepresent or former employees, finders’ fee agents or similar fee independent contractors of Seller, including, without limitation, any liabilities associated with any claims for wages, bonuses, commissions, accrued vacation or commission relating other benefits, severance, termination or other payments accrued or incurred prior to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; andClosing;
(f) all Liabilities related any liability under any Employee Benefit Plan (later defined), including without limitation, any employee benefit plan of or sponsored by Seller, any 401K plan or any other “employee pension benefit plan” as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974 (“ERISA”);
(g) any liability or obligation with respect to the Acquired Assets indebtedness of Seller or the Business owing to any bank or other financial institution;
(h) any trade payables and accounts payable of Seller;
(i) any liability arising out of or relating to any employee grievance against Seller arising from or related relating to any Environmental, Health, and Safety Laws events or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or omissions prior to Closing;
(j) any liability or obligation under or relating to that certain founder compensation agreement between Seller and Mxxxxx Xxxx dated as of August 15, 2009 (the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control“Founder Compensation Agreement”).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed assume and shall not be obligated to assume or be obliged to pay, performperform or otherwise discharge any Liability of, discharge or in Liability against, Seller, the Business or the Acquired Assets, of any other manner kind or nature, whether or not direct or indirect, and Seller shall be solely and exclusively liable or responsible for any with respect to all Liabilities of Sellers that are not Seller, other than the Assumed Liabilities (such Liabilities other than Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):), including:
(a) all costs and expenses incurred any Liability owed to, or for the benefit of, any Seller Employee, Benefit Plan or Multiemployer Plan pursuant to be incurred by Sellers in connection with this Agreement and the consummation of the Transactionsany Legal Requirement (including ERISA);
(b) all Liabilities (i) related any Liability of Seller to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating extent that it relates to any Benefit Plan an Excluded Asset and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed is not expressly assumed by Buyer pursuant to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the BusinessSection 2.3;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or any Liability of Seller with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before ClosingPre-Closing Apportioned Obligations;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2Intercompany Liabilities;
(e) all Liabilities to except as set forth in Section 2.3, any brokerLiability of Buyer arising from successor or transferee Liability (whether imposed by Legal Requirement, finder Contract or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to otherwise) in connection with the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleherein; and
(f) all except as set forth in Section 2.3, Liabilities related to arising out of the ownership of the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrarycontrary set forth herein, Buyer (nor any of its Affiliates) the Assumed Liabilities shall not include, and does not in no event shall the Purchaser assume, and shall be deemed not to have assumed and shall not be obligated agree to pay, perform, discharge or perform or incur any liability or obligation of the Company under this Agreement which is not expressly included as an Assumed Liability in any accordance with Section 1.4 hereof (all obligations and liabilities of the Company, other manner be liable than the Assumed Liabilities, are hereinafter referred to as the "EXCLUDED Liabilities"). Except to the extent reflected on, accrued for, reserved against or responsible otherwise provided for any Liabilities in the Company Financial Statements or disclosed in the Company Disclosure Schedule, and except for obligations and liabilities incurred in the ordinary course of Sellers business that are not Assumed Liabilitiesin the aggregate materially adverse to the Company, whether existing on the Closing Date or arising thereafterExcluded Liabilities shall include, but not be limited to, the following:
(a) claims, obligations and liabilities of the Company, including Liabilities compensatory, punitive damages, known or unknown, direct or indirect, including all costs and expenses relating to or thereto, arising out of any of Proceeding (as hereinafter defined) before or after the following (collectively, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the TransactionsClosing Date;
(b) all Liabilities obligations and liabilities of the Company for (i) related to any current or former employee "Taxes" (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (iias defined in Section 3.12(e) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related theretobelow) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any period (other than payroll and all Employeesother similar Taxes incurred in the ordinary course of business), and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(dii) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the unpaid Taxes of any Person (other Person than the Company) under Treasury Regulations Section 1.1502-6 (or any similar provision provisions of state, local or foreign Lawlaw), as a transferee or successor, by Contract contract or otherwiseotherwise or (iii) except obligations or liabilities of the Company for Taxes for which Buyer is liable pursuant to Section 2.2;
federal, state, county, local, foreign or other income, sales, use or transfer taxes or assessments (eincluding interest and penalties thereon, if any) all Liabilities to of any brokerkind whatsoever arising from, finder based upon or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets sale, transfer or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any delivery of the Acquired Assets, Assets pursuant to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.Agreement;
Appears in 1 contract
Samples: Asset Purchase Agreement (Return on Investment Corp)
Excluded Liabilities. Notwithstanding anything in any provision of this Agreement to the contrary, Buyer (nor any none of its Affiliates) the liabilities or obligations of Seller other than the Assumed Liabilities shall not and does not assumebe assumed or are being assumed by Buyer, and Seller shall be deemed not to have assumed retain and shall not be obligated to payremain and hereby retains and remains solely liable for, performall of the debts, discharge expenses, contracts, agreements, commitments, obligations and other liabilities of any nature whatsoever of Seller, the business of Seller or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilitiesthe Purchased Assets, whether existing on the Closing Date known or arising thereafterunknown, including Liabilities relating to accrued or arising out of any of the following not accrued, fixed or contingent (collectively, the “Excluded Liabilities”):), including the following:
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) 2.4.1 Any liability related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, Excluded Assets;
2.4.2 Except as set forth in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of SellersSection 2.3.5, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or liability arising under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period Assigned Contracts on or prior to the Closing; provided that in the event Closing Date or any liability for any breach by Seller or any other Person of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control.Assigned Contract prior to the Closing Date or any liability for Seller’s failure to pay any accounts payable outstanding under the Assigned Contracts on or prior to the Closing Date; [*] CERTAIN INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. Execution Version
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in any other provision of this Agreement to the contrary, Buyer (nor is assuming only the Assumed Liabilities and is not assuming any other Action or Claim against or Liability of its Affiliates) any Seller, and the Parties expressly acknowledge and agree that Buyer is not a successor to any Seller and shall not and does not assume, and shall be deemed not to have assumed and shall not or be liable or obligated to pay, perform, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilitiesany Seller or any of any Seller’s predecessors or Affiliates, or any Fairway Unitholder, of whatever nature, whether existing on or prior to the Closing Date or arising thereafter, including Liabilities relating to or arising out after the Closing Date as a result of any act, omission or circumstance taking place prior to the Closing, including, for the avoidance of doubt, Excluded Taxes, other than the following Assumed Liabilities. All such other Actions, Claims and Liabilities shall be retained by and remain Actions, Claims and Liabilities of Sellers (collectivelyall such Actions, Claims and Liabilities not being assumed being herein referred to as the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and ). To the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor extent of any Seller dispute or of any Subsidiary ambiguity as to whether an Action, Claim or Affiliate of any Seller Liability is an Assumed Liability or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any an Excluded Liability, including on account of an ERISA Affiliate such Action, Claim or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law)shall be, as a transferee or successorbetween the Parties, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controldeemed an Excluded Liability.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Excluded Liabilities. Notwithstanding anything in this Agreement to Except for the contraryAssumed Liabilities, Buyer La Jolla and Jewel do not assume and shall not be responsible for, and shall not otherwise bear the economic burden of: (nor A) any liabilities, obligations, debts or expenses of GliaMed or any of its Affiliates) shall not , including, without limitation, any liabilities for accounts payable; accrued expenses; taxes; indebtedness for borrowed money; contractual obligations other than arising under the Assigned Agreements, whether past, accrued or executory; obligations to employees and does not assumeformer employees in respect of accrued salaries, and shall be deemed not to have assumed and shall not be obligated to wages, vacation pay, performseverance pay and obligations under the benefit plans; liabilities to Regulatory Authorities; liabilities for injuries to persons or property; other tort liabilities; liabilities under environmental laws; liabilities under collective bargaining agreements and pending employee grievances; product warranty claims and violations of or obligations under Applicable Laws or otherwise, discharge all of the foregoing from the beginning of time, or in (B) any other manner be liable liabilities, obligations, debts or responsible for expenses of GliaMed or any Liabilities of Sellers its Affiliates arising under or relating to the Assigned Agreements, to the extent that are not Assumed Liabilities, whether existing such obligations arose on or prior to the Closing Date or arising thereafterDate, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”):
(a) ). As between GliaMed on the one hand and La Jolla and Jewel on the other hand, GliaMed shall be exclusively responsible for all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlExcluded Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (La Jolla Pharmaceutical Co)
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor the term "Assumed Liabilities" shall not include any of its Affiliates) shall not and does not assumethe following debts, and shall be deemed not to have assumed and obligations or liabilities of the Company and, therefore, Purchaser shall not be obligated to assume hereunder or to pay, perform, perform or discharge or in any other manner be liable or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of such debts, obligations and liabilities (the following (collectively, the “"Excluded Liabilities”") (it being understood that all such debts, obligations and liabilities shall continue to be debts, obligations and liabilities of the Company):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities (i) related to any current or former employee (including the Employees)Any federal, candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee income taxes payable by the Company or successor, by Contract any Shareholder or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2any interest or penalties with respect thereto;
(eii) all Liabilities to Any liability of the Company under any brokeremployee benefit plan (including, finder without limitation, any profit sharing plan or agent or similar intermediary any pension plan);
(iii) Any liability of the Company for any finder's, broker’s fee, finders’ 's or advisor's fee and expenses or similar fee or commission relating to the like incurred in connection with the transactions contemplated by this Agreement;
(iv) Any liability of the Company arising under this Agreement for which or the transactions contemplated hereby;
(v) Any debt, obligation or liability of the Company or to either Shareholder or any Seller former shareholder;
(vi) Any debt, obligation or its Subsidiaries or Affiliates are responsibleliability of the Company under commitments to make charitable contributions;
(vii) Those debts, obligations and liabilities of the Company to current and former employees of the Company set forth on Schedule 1.2(b)(vii) hereto; and
(fviii) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any Any liability of the Acquired AssetsCompany arising under the contacts, to the extent arising agreements or attributable to any period on licenses set forth in Schedule 1.2(b)(viii) hereto which contracts, agreements and licenses are not being purchased or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlassumed hereunder.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement to the contrary, Buyer (nor any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any other manner be liable agreement or responsible for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Closing Date or arising thereafter, including Liabilities relating certificate being delivered pursuant to or arising out of any of the following this Agreement (collectively, the “"Transaction Documents"), and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents or on any Schedule or Exhibit hereto or thereto, none of the ANICOM ENTITIES shall assume or agree to pay, defend, discharge or perform or in any manner be responsible for any Excluded Liabilities”):
. As used herein, the term "Excluded Liabilities" means any and all debts, liabilities or obligations of one or more of the TEXCAN ENTITIES other than the Assumed Liabilities described in Section 3.1. The "Excluded Liabilities" include, but are not limited to, (a) all costs and expenses incurred any income or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
capital Tax liabilities or obligations, (b) all Liabilities (i) related to except as otherwise contemplated herein, any current Claims arising out of or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation the conduct of one or benefit plans, programs, arrangements, or agreements more of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) the TEXCAN ENTITIES at any time maintainedafter the Closing Time, sponsored(c) any liabilities whatsoever relating, contributed directly or indirectly, to any Excluded Assets, (d) any liabilities or required obligations of one or more of the TEXCAN ENTITIES or their respective Related Persons to be contributed the other TEXCAN ENTITIES or their respective Related Persons (e) any liabilities or obligations of one or more of the TEXCAN ENTITIES to by any former shareholders or other securities holders thereof and (f) any liabilities or obligations of Sellers, any one or more of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or the TEXCAN ENTITIES with respect to which any Seller indebtedness or any Subsidiary other obligations or Affiliate liabilities of any Seller has or has had any LiabilityRelated Persons including, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure towithout limitation, any Hazardous Substance atguaranties or security agreements (collectively, on, under, or migrating to any of the Acquired Assets, to the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control"Third Party Guaranties").
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything else contained in this Agreement to the contraryAgreement, Buyer (nor is not assuming any liability or obligation of Seller or any of its Affiliates) shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge subsidiaries (or in any other manner be liable predecessor thereof or responsible for any Liabilities prior owner of Sellers that are not Assumed Liabilities, whether existing on the Closing Date all or arising thereafter, including Liabilities relating to or arising out part of any of their businesses, properties and assets) of whatever nature, whether presently in existence or arising hereafter, known or unknown, accrued, absolute, contingent or otherwise, other than the following (collectivelyAssumed Liabilities and, in any event, Buyer is not assuming any of the “Excluded Liabilities”):following:
(a) all costs except as provided in Article 8 with respect Apportioned Obligations and expenses incurred transfer taxes, any liability or obligation for Taxes of Seller or any of its subsidiaries or any member of any consolidated, affiliated, combined or unitary group of which Seller or any of its subsidiaries is or has been a member, arising on or prior to be incurred by Sellers in connection with this Agreement and the consummation of the TransactionsClosing Date;
(b) except to the extent provided in Article 9, all Liabilities (i) related to any current liabilities or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way obligations relating to any Benefit Plan and any other employees or their compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Businessbenefits;
(c) except any liability or obligation under any indebtedness for borrowed money (other than in respect of the Agreement for Wholesale Financing with Deutsche Financial Services Corp. dated as provided under Section 2.2(dof December 24, 1998, as amended on May 25, 1999 and December 23, 1999), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (liability or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2obligation described on Schedule 2.04;
(e) all Liabilities to any broker, finder liability or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission obligation relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsibleExcluded Assets; and
(f) all Liabilities related any liability or obligation arising under or relating to any Environmental Law which does not primarily relate to or arise out of the Acquired Assets conduct of the Business or the Business arising from ownership or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any use of the Acquired Purchased Assets, to . All such liabilities and obligations not being assumed by Buyer shall be retained by and remain liabilities and obligations of Seller and its subsidiaries (the extent arising or attributable to any period on or prior to the Closing; provided that in the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will control"Excluded Liabilities").
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary, Buyer (nor any of its Affiliates) Purchaser shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities whatsoever of, or Action against, Sellers or relating to the Acquired Assets or the Acquired Business, of Sellers that are not Assumed Liabilitiesany kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, currently existing or hereafter arising, matured or unmatured, direct or indirect, and however arising, whether existing on the Closing Date or arising thereafter, including other than the Assumed Liabilities relating (all such Liabilities that are not Assumed Liabilities being referred to or arising out of any of the following (collectively, collectively herein as the “Excluded Liabilities”):
(a) all costs ). For the avoidance of doubt, Excluded Liabilities shall include any and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation of the Transactions;
(b) all Liabilities and obligations for (i) related to any current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any EnvironmentalBusiness, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, to or the extent arising Assumed Liabilities for any taxable period (or attributable to any period portion thereof) ending on or prior to the Closing; provided that Closing Date (as determined and paid in accordance with the event principles set forth in Section 9.4), (ii) any Taxes of any conflict between Section 2.2 Seller for any taxable period, (iii) gift cards, rewards points or loyalty rewards issued by any Seller, (iv) any Seller’s retail store leases, and this Section 2.3(v) amounts due to employees, Section 2.3 will controlindependent contractors, consultants or Advisors of Sellers (other than any such amounts owed under any Assigned Contract after the Closing).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Except as expressly set forth in this Agreement to SECTION 1.1(C), the contrary, Buyer (nor any of its Affiliates) shall not assume or be responsible at any time for any liability, obligation, debt or commitment of the Company, whether absolute or contingent, accrued or unaccrued, asserted or unasserted, or otherwise (the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Company expressly acknowledges and does not assumeagrees that the Company shall retain, and shall be deemed not to have assumed and that Buyer shall not assume or otherwise be obligated to pay, perform, discharge defend or in discharge, any other manner be liable liability or responsible for any Liabilities of Sellers that are not Assumed Liabilitiesobligation incident to, whether existing on the Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectivelyor incurred with respect to, the “Excluded Liabilities”):
(a) all costs and expenses incurred or to be incurred by Sellers in connection with this Agreement and the consummation transactions contemplated hereby (including any and legal or other fees and expenses, all sales, income or other taxes arising out of the Transactions;
(b) transactions contemplated hereby; without limiting the generality of the foregoing, Seller shall promptly file a New York bulk sale tax notice and remit any and all Liabilities (i) related sale taxes due in respect of the sale of assets contemplated in this transaction to any current be paid by Buyer at Closing); for taxes whether measured by income or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of any Seller or of any Subsidiary or Affiliate of any Seller or (ii) arising underotherwise, in connection with any Plan or Benefit Program or Agreement (as defined in SECTION 3.7), including, without limitation, any way liability of the Company under ERISA, under any foreign, federal, state or local law, rule, regulation, ordinance, program, Permit, or other Legal Requirement relating to health, safety, Hazardous Materials and environmental matters applicable to the Company's business and/or the facilities Used by the Company (whether or not owned by the Company), pertaining to products sold or manufactured or services performed or other actions taken or omitted by the Company prior to the Closing Date, relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Subsidiaries or Affiliates, or any ERISA Affiliate or default taking place before the Closing Date under or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Business;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any and all Employees, and contractors of Sellers or any of their Subsidiaries or Affiliates arising at any time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is liable pursuant to Section 2.2;
(e) all Liabilities to any broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Seller or its Subsidiaries or Affiliates are responsible; and
(f) all Liabilities related to the Acquired Assets or the Business arising from or related to any Environmental, Health, and Safety Laws or the presence of or release of, or exposure to, any Hazardous Substance at, on, under, or migrating to any of the Acquired Assets, Assumed Obligations to the extent arising such default created or attributable increased the liability or obligation, or for Funded Indebtedness or accrued interest, fees or penalties with respect thereto. The Company agrees to any period on or prior to satisfy and discharge the Closing; provided that in Excluded Liabilities as the event of any conflict between Section 2.2 and this Section 2.3, Section 2.3 will controlsame shall become due.
Appears in 1 contract
Samples: Asset Purchase Agreement (Colonial Commercial Corp)
