Liabilities Assumed by Purchaser. As further consideration for the purchase of the Acquired Assets and consummation of the other transactions contemplated hereby, on the Closing Date, Purchaser shall assume and agree to perform and discharge in full, when due, the liabilities of Seller and the Business arising under or associated with (collectively, the “Assumed Liabilities”):
(a) Purchaser’s conduct of the Business after the Closing Date, including with respect to the use of the Acquired Assets and the hiring and employment of the Employees; provided that:
(i) obligations for services rendered both prior to and after the Closing Date will be allocated between Purchaser and Seller based on the Closing Date (e.g., an invoice for services rendered for the third quarter would be allocated 1/3 to Seller as an Excluded Liability and 2/3 to Purchaser as an Assumed Liability;
(b) All product liability claims caused by or the result of any product produced or manufactured by Purchaser after Closing;
(c) All outstanding warranty claims and all warranty claims asserted in writing from and after the Closing;
(d) Any recalls by a third party of a product of such third party which utilizes a product sold, distributed or otherwise placed in the stream of commerce by Purchaser in the Business after Closing (other than any such product that was manufactured by Seller on or before Closing), or manufactured by Purchaser in the Business after Closing;
(e) Except as expressly provided in Section 2.3 below, any of the following matters: (i) any violation of any Environmental Law with respect to the operation of the Business; and (ii) any generation, treatment, storage, transport, management, use, handling, disposal, leakage, spill or release of any Hazardous Material with respect to the operation of the Business on, under or migrating from the Owned Real Property (collectively, items (i) and (ii) are hereinafter sometimes referred to as the “Environmental Liabilities”), regardless of when or where such Environmental Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Closing; and
(f) The Assumed Contracts.
Liabilities Assumed by Purchaser. 12 3.2 Liabilities Not Assumed by Purchaser..............................................................13
Liabilities Assumed by Purchaser. Upon the terms and subject to the conditions of this Agreement, effective as of the Closing Date, Purchaser or any Purchaser Affiliate shall assume and be obligated to pay when due, perform, or discharge only the Assumed Liabilities.
Liabilities Assumed by Purchaser. (a) Purchaser, in connection with the purchase of the Assets, at the Closing, shall assume the following liabilities and obligations of Seller ("ASSUMED LIABILITIES"): (i) all liabilities and obligations of Seller that arise due to any occurrence subsequent to the Closing, or due to an action or omission of Purchaser or in connection with the operation of the Business, subsequent to the Closing, and to the extent that such liabilities and obligations are by their terms to be performed after the Closing under the terms of a Contract, agreement, license, sales order, purchase order or other commitment (including Permits as defined in Section 4.10(A)) that is assigned to Purchaser hereunder and that is listed on Schedule 1.1(c) other than liabilities and obligations arising out of the breach by Seller, of any such Contract, agreement, license, sales order, purchase order or other commitment, provided that as a condition to assuming the DVI credit line, loan no. 00-00-000 as set forth on Schedule 1.1(c) ("DVI WC LOAN"), Purchaser's lender and DVI must reach accommodation prior to Closing with respect to their respective security interests and liens in the Assets, and (ii) the Accounts Payable as set forth on the Accounts Payable Schedule, as defined in Section 6.7 (c). At the Closing, the aggregate of the (A) Accounts Payable, (B) DVI WC Loan, as reduced at Closing to $191,000 pursuant to Section 3.2(b)(xi), (C) First Union Bank loan no. 00-000-000000, and (D) the principal amount of the Anchor Loans ($125,000) shall not exceed the Accounts Receivable Certification, as defined in Section 6.7(b) ("AGGREGATE SPECIFIC ASSUMED LIABILITIES").
(b) Purchaser shall execute and deliver to Seller an Assignment and Assumption Agreement, substantially in the form attached hereto as EXHIBIT C ("ASSUMPTION AGREEMENT"), pursuant to which Purchaser shall agree to pay, perform and discharge when due, to the extent the same are unpaid, unperformed or undischarged on the Closing Date, the Assumed Liabilities.
Liabilities Assumed by Purchaser. Upon the terms and subject to the conditions of this Agreement, and in reliance on the representations, warranties, covenants and agreements made by Seller herein, effective as of the Closing Date, Purchaser shall assume and be obligated pursuant to this Agreement to pay when due, perform, or discharge only the debts, claims, liabilities, obligations, and expenses described below and on Schedule 1.1(c) (collectively, the “Assumed Liabilities”):
(i) executory obligations arising from the Purchased Contracts which are to be performed after the Closing Date; provided, however, that Purchaser shall not assume any (x) costs or expenses related to any Excluded Liabilities, (y) obligations arising from any contracts, instruments, agreements, commitments or other understandings or arrangements attributable or relating to the Business, the rights to which are not, for any reason, assigned to Purchaser as required pursuant to the terms of this Agreement, and (z) obligations which are past due or arise as a result of or in connection with a breach or default by Seller under any of the Purchased Contracts or a violation of any Laws or public policy which occurred on or prior to the Closing Date; and
(ii) all Taxes accrued on or after the Closing Date in connection with the ownership of the Purchased Assets and the operation of the Business after the Closing Date.
Liabilities Assumed by Purchaser. As of the Effective Time, subject to the terms and conditions set forth in this Agreement, Seller shall transfer and assign to Purchaser, and Purchaser shall assume from Seller and agree to pay, perform and discharge the following Liabilities of Seller other than Excluded Liabilities (collectively, the “Assumed Liabilities”): (i)the obligation to pay the Deposits to the extent attributable to any period commencing from and after the Effective Time; (ii)the obligations and Liabilities of Seller under the Acquired Contracts to the extent attributable to any period commencing from and after the Effective Time; and (iii)all Liability for Taxes imposed with respect to the Program attributable to any period (or portion thereof) commencing from and after the Effective Time. (b)
Liabilities Assumed by Purchaser. As used in this Agreement, the term “liability” shall mean and include any direct or indirect Indebtedness, guaranty, endorsement, claim, loss, damage, deficiency, cost, expense, obligation, performance requirement or responsibility, fixed or unfixed, contingent, known or unknown, asserted or unasserted, liquidated or unliquidated, secured or unsecured. At the Closing, Purchaser (or a Subsidiary or Affiliate of Purchaser designated by Purchaser) will assume and agree to perform and discharge the liabilities of Seller, as of the Closing Date, arising from (collectively, the “Assumed Liabilities”): (i) the Maintenance and Support Contracts; (ii) the Open Customer Contracts, it being understood that Purchaser’s assumed obligations with respect to the Open Customer Contracts shall be limited to the specific period of time or number of man-hours, as the case may be, disclosed by Seller in Schedule 6.10 as being required to complete the outstanding work as of the Closing Date; (iii) the Assumed Contracts; and (iv) the Assumed Supplier Obligations specifically set forth and agreed to be assumed in Schedule 3.1.
Liabilities Assumed by Purchaser. All of the liabilities of H.X. Xxxxx, Inc., known and not known, arising prior to the Closing.
Liabilities Assumed by Purchaser. 2 1.3. Allocation....................................... 2 ARTICLE II CLOSING; EFFECTIVE TIME.......................... 3 2.1. Closing.......................................... 3 2.2. Deliveries....................................... 3 2.3. Affidavit........................................ 4
Liabilities Assumed by Purchaser. As further consideration for consummation of the transactions contemplated hereby, Purchaser, without further action by any party, hereby assumes and agrees to pay when due the following and only the following liabilities of Sellers:
(a) all liabilities reflected on the Pro-Forma Balance Sheet (as defined in Exhibit A) that have not been satisfied prior to the date of this Agreement and all ordinary course payables and other ordinary course liabilities incurred in connection with the operation of the Business after November 30, 2001 (so long as such payables and liabilities are of the same kind and nature as those included in the Pro-Forma Balance Sheet), except to the extent that any such payables and other liabilities are Excluded Liabilities (as defined below); (b) all obligations and liabilities under the Acquired Contracts (as defined below), except to the extent that any such liabilities are Excluded Liabilities; and (c) liabilities related to the Affected Employees (as defined below) in accordance with the provisions of Section 5.02, except to the extent that any such liabilities are Excluded Liabilities (collectively, the "Assumed Liabilities").
