Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assume, or in any way be liable or responsible for, any of such Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the following: (i) any Liability or obligation of each of the Sellers or Parent arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising; (ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities; (iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis; (iv) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior to the Closing Date; and (v) any Liabilities with respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing Date.
Appears in 2 contracts
Samples: Bill of Sale and Asset Purchase Agreement (Amedisys Inc), Bill of Sale and Asset Purchase Agreement (Park Pharmacy Corp)
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or take title to the Assets subject to, nor shall Triangle or Buyer in any way be liable or responsible for, any liabilities or obligations of Sellers (whether or not referred to in any Schedule or Exhibit hereto), except as specifically provided in Section 1.4, it being expressly acknowledged that it is the intention of the parties hereto that all liabilities and obligations that Sellers have or may have in the future (whether accrued, absolute, contingent, unliquidated, or otherwise, whether or not known to Sellers, and whether due or to become due), other than the Liabilities, shall be and remain the liabilities and obligations of Sellers. Without limiting the generality of the foregoing, and except as specifically provided in Section 1.4, Buyer shall not assume or take title to the Assets subject to, or in any way be liable or responsible for, any of such Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the following:
: (ia) any Liability liabilities or obligations of Sellers whether or not relating to the Assets or the Business, and whether or not arising or asserted prior to the Closing, (b) any liability or obligation of each Sellers under any mortgage, deed of trust, security agreement, or financing statement, or any note, bond, or other instrument or obligation secured thereby, (c) any liability or obligation of Sellers existing at or arising after the Closing Date under any leases, contracts, agreements, or Permits included in the Assets that results from the material breach, default, or wrongful action or inaction of Sellers prior to the close of business on the Closing Date, (d) any liability or Parent arising out obligation of Sellers resulting from or relating to the employment relationship between any Seller and any Seller's present or former employees engaged in connection with the negotiation and preparation of this Agreement and the consummation and performance ownership or operation of the transactions contemplated herebyAssets or the Business or the termination of any such employment relationship, including without limitation severance pay and other similar benefits, if any, and any claims filed on or prior to the Closing Date or that may thereafter be filed by or on behalf of any such present or former employee relating to the employment or termination of employment of any such employee by a Seller, including without limitation any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation, or any Tax Liabilities so arising;
workers' compensation, (iie) any Liability liability or obligation of each Sellers in respect of any agreement, trust, plan, fund, or other arrangement under which benefits or employment is provided for any Seller's present or former employees engaged in connection with Sellers' ownership or operation of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this AgreementBusiness, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(ivf) any Liabilities with respect liabilities or deficiencies for any Taxes, to any claims, suits, actions the extent applicable to periods (or causes of action arising out of the operation of the Business portions thereof) ending on or prior to the Closing Date; and
(v) any Liabilities with respect . For purposes of this Section 1.10, references to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing DateSellers shall include predecessors in title.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything Except for those liabilities and obligations of Seller specifically identified as Assumed Liabilities assumed as of the Closing, Buyer does not assume and shall not be liable for, and shall not be deemed by anything contained in this Agreement to the contrary notwithstandinghave assumed, each of the Sellers and Parent shall be responsible for all of their respective Liabilities Seller hereby agrees, irrevocably and obligationsunconditionally, which includes all Liabilities, related to fully pay and perform in any a prompt and timely manner and to indemnify Buyer and hold Buyer harmless with respect to all liabilities and obligations of Seller, whether or not arising in connection with the Business and/or the Purchased Assets and/or any of the SellersDivision Business, but excluding solely the Assumed Liabilities and whether accrued or fixed, absolute or contingent, known or unknown, determined or undetermined, and whenever arising (collectively, the "Excluded LiabilitiesEXCLUDED LIABILITIES"), and Buyer shall not assume, or in any way be liable or responsible for, any of such Excluded Liabilities. Without limiting the generality of limitation to the foregoing, and for purposes only of illustration, it is expressly agreed that the Excluded Liabilities shall also include the following:
(ia) Any liability of Seller to any Liability person or obligation entity the existence of each which constitutes a breach of the Sellers any covenant, agreement, representation or Parent arising out warranty of or Seller contained in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arisingAgreement;
(iib) Except as provided in Section 6.12, any Liability or obligation liability of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, Seller for any foreign, federal, state, commonwealthlocal, county foreign or local taxes of any kind or natureother Taxes (as hereinafter defined), or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable except to the transfer extent liabilities for such Taxes are included in the calculation of the Purchased Closing Date Net Assets or and the transfer Cash Portion of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basisPurchase Price pursuant to SECTION 2.2;
(ivc) Except as set forth in SECTION 2.3(f) or 2.3(h) and except for liabilities under Assumed Contracts, any Liabilities with respect to liability of Seller for any claims, suits, actions or causes of action arising out of the operation of the Business on or event occurring prior to the Closing Date; and
(v) Date or any Liabilities with respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or obligation for benefits accrued prior to the Closing DateDate under any "Employee Benefit Plans." "Employee Benefit Plans" means any employee pension benefit plans (as defined in Section (3)(2) of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA")), employee welfare benefit plans (as defined in Section 3(1) of ERISA), bonus, deferred compensation, incentive compensation, stock ownership, phantom stock, disability, death, dependent care, employee assistance, scholarship or other plan or program, arrangement or understanding (whether or not covered by ERISA) maintained in whole or in part, contributed to, or required to be contributed to by Seller for the benefit of any present or former officer, employee, or director of Seller or any entity which is under common control with Seller within the meaning of section 414 of the Internal Revenue Code of 1986 (the "CODE"), any such entity being hereafter referred to as a "COMMONLY CONTROLLED ENTITY";
Appears in 1 contract
Samples: Asset Purchase Agreement (K2 Inc)
Liabilities Not Assumed by Buyer. Anything in this Agreement to Except for the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Assumed Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or incur, and Seller shall remain liable to pay, perform and discharge, all liabilities and obligations of Seller including, without limitation, all liabilities and obligations of Seller (i) with respect to federal, state and local taxes of every kind and character including income, property, intangibles, ad valorem, franchise, sales or use taxes or employment or payroll taxes (including but not limited to FICA, withholding obligations, and unemployment insurance premiums) resulting from or in any way be liable connected with the operation of Seller's business (including any state or responsible forlocal taxes resulting from or in any way connected with the transactions contemplated by this Agreement), any of such Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the following:
(iii) any Liability or obligation of each of the Sellers or Parent arising out of or in connection any way connected with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, pending or threatened litigation resulting from or in any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities way connected with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior to the Closing Date; and
Closing, whether or not disclosed to Buyer, including accrued fees, if any, of counsel in respect thereof, (iii) for violation by Seller of any statute, ordinance, regulation, order, judgment or decree, (iv) under any contract, lease or usufruct of Seller as to which Seller's rights, benefits and privileges are not transferred and assigned to Buyer at the Closing, pursuant to the terms of this Agreement, (v) under any Liabilities contract or lease of Seller as to which Seller's rights, benefits and privileges are transferred and assigned to and assumed by Buyer at the Closing, which relate to periods prior to the Closing, (vi) arising out of or in respect of any transaction of Seller accruing after the Closing, (vii) for costs incurred, whether or not then due, for utilities services rendered or furnished to Seller, including without limitation all water, gas and sewage treatment services prior to the Closing, (viii) owed to its stockholders or any affiliate of Seller or its stockholders, (ix) arising out of Seller's breach of this Agreement including any representation or warranty contained herein, (x) with respect to each accrued or contingent benefits under any "employee welfare benefit plan" or "employee pension benefit plan", as such terms are defined in the Employee Retirement Income Security Act of the Sellers' Benefit Plans 1974, as amended (defined herein) and/or Benefit Arrangements "ERISA"), maintained by Seller, (defined hereinxi) arising from or relating to any claims by or on behalf of present or prior former employees of Seller in respect of severance pay or benefits or termination pay or benefits and similar obligations relating to the Closing Datetermination of such employees' employment with Seller or Buyer's refusal to hire the same, or (xii) any of Seller's accounts payable.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or take title to the Assets subject to, or in any way be liable or responsible for, any liabilities or obligations of such Excluded Sellers or Oxford (whether or not referred to in any Schedule or Exhibit hereto), except as specifically provided in Section 1.4, it being expressly acknowledged that it is the intention of the parties hereto that all liabilities and obligations that Sellers or Oxford have or may have in the future (whether accrued, absolute, contingent, unliquidated, or otherwise, whether or not known to Sellers or Oxford, and whether due or to become due), other than the Assumed Liabilities, shall be and remain the liabilities and obligations of Sellers and Oxford. Without limiting the generality of the foregoing, Buyer shall not assume or take title to the Excluded Liabilities shall also include the followingAssets subject to, or in any way be liable or responsible for:
(ia) any Liability liability or obligation of each of the Sellers or Parent arising out Oxford under any mortgage, deed of trust, security agreement, or financing statement, or any note, bond, or other instrument or obligation secured thereby,
(b) any liability or obligation of Sellers or Oxford in respect of any express or implied representation, warranty, agreement, or guaranty made (or claimed to have been made) by Sellers or Oxford, or imposed (or asserted to be imposed) by operation of law, in respect of any products produced or services rendered, distributed, or sold by Sellers in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior to the Closing Date; and,
(vc) any Liabilities liability or obligation of Sellers or Oxford existing at or arising after the Closing Date under any leases, contracts, insurance policies, agreements, or Permits, whether or not included in the Assets, which results from the breach, default, or wrongful action or inaction of Sellers or Oxford prior to the close of business on the Closing Date (or thereafter),
(d) any liability or obligation of Sellers resulting from or relating to the employment relationship between Sellers and any of Sellers' present or former employees engaged in connection with respect to each the ownership or operation of the Sellers' Benefit Plans Assets or the termination of any such employment relationship, including without limitation severance pay, bonuses, commissions (defined hereinother than those incurred since March 1, 1999 pursuant to the Subservicer Agreement) and/or Benefit Arrangements (defined herein) arising and other similar benefits, if any, and any claims filed on or prior to the Closing DateDate or which may thereafter be filed by or on behalf of any such present or former employee relating to the employment or termination of employment of any such employee by Sellers, including without limitation any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation, employee benefits or workers' compensation,
(e) any liability or obligation of Sellers or Oxford in respect of any agreement, trust, plan, fund, or other arrangement under which benefits or employment is provided for any of Sellers' present or former employees engaged in connection with the ownership or operation of the Assets, and
(f) any income or payroll tax liabilities or deficiencies, whether federal, state, or local, and any ad valorem property taxes, in each such case to the extent applicable to periods ending on or prior to the Closing Date (or February 28, 1999 for persons subject to the Subservicer Agreement). For purposes of this Section, references to Sellers shall include their predecessors in title.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent Seller shall be responsible for all liabilities and obligations of their respective Liabilities Seller and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities not hereby expressly assumed by Buyer (collectively, the "Excluded Retained Liabilities"), and Buyer shall not assume, or in any way be liable or responsible for, any liabilities or obligations of such Excluded Seller or of the Business, except the Assumed Liabilities. Without limiting the generality of the foregoing, Buyer shall not assume, or in any way be liable or responsible for, the Excluded Liabilities shall also include the followingfollowing Retained Liabilities:
(ia) any Liability Any liability or obligation of each of the Sellers or Parent Seller arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or including any Tax Liabilities liability so arising;
(iib) any Liability Any liability or obligation of each Seller with respect to employment or consulting agreements, pension, profit sharing, welfare and other Benefit Plans, or amounts owing for commissions or compensation, termination, severance or other payments to the present or former employees, officers, directors or shareholders of Seller, including any of the Sellers contribution history or existing withdrawal liabilities associated with any multi-employer pension plan and any withdrawal liability directly or indirectly resulting from the sale of the Assets under Subtitle E, Part 1 of ERISA, in each case, that is specifically retained are attributable to conditions existing or events occurring prior to the Closing or that are triggered by the Sellers pursuant to consummation of the transactions contemplated by this Agreement, including, without limitation, the Excluded Liabilities;
(iiic) Any obligations or liabilities with respect to the present or former employees, officers, directors or shareholders of Seller, including claims under any Liability federal, state, local or other laws, statutes, rules, regulations, ordinances, codes, orders or authorizations, including worker's compensation claims, ERISA claims, COBRA claims, age claims, civil rights laws claims, claims under the Fair Labor Standards Act, claims under the Labor Management Relations Act, employment discrimination claims of all types, sexual harassment claims, pension fund liability (whether for current or unfunded accrued liabilities), Americans With Disabilities Act claims and Occupational Safety and Health Act claims, and any obligations or liabilities with respect to the consultants of Seller.
(d) Any liability or obligation of each Seller arising under any Contract that is attributable to any violation, breach or failure to perform occurring prior to Closing, and any liability or obligation of the Sellers Seller arising under any Contract that is not assumed by Buyer;
(e) Any liability or Parentobligation of Seller, or any consolidated group of which the Sellers are Seller is a member, for any foreign, federal, state, commonwealth, county or local taxes Taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales ; or
(f) Any liability or use tax obligations applicable to the transfer of the Purchased Assets obligation under COBRA or the transfer Tax Reform Act of the Contracts and/or Leases as contemplated by this Agreement1986, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claimsemployees of Seller (whether salary, suits, actions hourly or causes of action arising out of the operation of the Business on or prior to the Closing Date; and
(votherwise) any Liabilities with respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing Datewho are not employed by Buyer immediately upon Closing.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or take -------------------------------- title to the Assets subject to, or in any way be liable or responsible for, any liabilities or obligations of such Excluded Seller or any affiliate of Seller (whether or not referred to in any Schedule or Exhibit hereto), except as specifically provided in Section 1.5, it being expressly acknowledged that it is the intention of the parties hereto that all liabilities and obligations that Seller has or may have in the future (whether accrued, absolute, contingent, unliquidated, or otherwise, whether or not known to Seller, and whether due or to become due), other than the Assumed Liabilities, shall be and remain the liabilities and obligations of Seller. Without limiting the generality of the foregoing, except as specifically provided in Section 1.5 or elsewhere within this Agreement, Buyer shall not assume or take title to the Excluded Liabilities shall also include Assets subject to, or in any way be liable or responsible for:
(a) any liabilities or obligations of Seller or Access Worldwide whether or not relating to the following:Assets, and whether or not arising or asserted prior to the Closing;
(b) any liability or obligation of Seller under any mortgage, deed of trust, security agreement, or financing statement, or any note, bond, or other instrument or obligation secured thereby;
(c) any liability or obligation of Seller in respect of any express or implied representation, warranty, agreement, or guaranty made (or claimed to have been made) by Seller, or imposed (or asserted to be imposed) by operation of law, in respect of any products produced, distributed, or sold by Seller, or any services performed by Seller, on or prior to the Closing Date;
(d) any liability or obligation of Seller to repair or replace any products produced, distributed, or sold by Seller on or prior to the Closing Date;
(e) any liability or obligation of Seller under any recalls after the Closing Date mandated by any Governmental Entity of any products produced, distributed, or sold by Seller on or prior to the Closing Date;
(f) any liability or obligation of Seller arising from or in connection with product liability claims relating to products produced, distributed, or sold by Seller in connection with its business on or prior to the Closing Date;
(g) any liability or obligation of Seller existing at or arising after the Closing Date under any leases, contracts, agreements, or Permits included in the Assets that results from the breach, default, or wrongful action or inaction of Seller prior to the close of business on the Closing Date;
(h) any liability or obligation of Seller resulting from or relating to the employment relationship between Seller and its present or former employees or independent contractors, or the termination of any such employment or other relationship, including without limitation severance pay and other similar benefits, if any, and any claims filed on or prior to the Closing Date or that may thereafter be filed by or on behalf of any such present or former employee or independent contractor relating to the employment or termination of employment or services of any such person by Seller, including without limitation any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation, or workers' compensation;
(i) any Liability liability or obligation of each Seller in respect of the Sellers or Parent arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated herebyany agreement, trust, plan, fund, or any Tax Liabilities so arisingother arrangement under which benefits or employment is provided for Seller's present or former employees or independent contractors;
(iij) any Liability liabilities or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, deficiencies for any foreignTaxes, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations to the extent applicable to the transfer of the Purchased Assets periods (or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(ivportions thereof) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business ending on or prior to the Closing Date; and
(vk) any Liabilities with respect to each liability for the cost of removal of underground storage tanks, testing and remediation, and other related costs, and any liability, including fines, for the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) violation of, or arising on or prior to the Closing Dateunder, any Applicable Environmental Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Access Worldwide Communications Inc)
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent SELLER shall be responsible for all of their respective Liabilities its liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities obligations not hereby expressly assumed by BUYER (collectively, the "Excluded Retained Liabilities"), and Buyer BUYER shall not assume, or in any way be liable or responsible for, any liabilities or obligations of such Excluded any SELLER, except the Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities BUYER shall also include not assume, or in any way be liable or responsible for, the following:
(ia) any Liability Any liability or obligation of each of the Sellers or Parent any SELLER arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, whether or not such transactions are consummated, including, but not limited to, any Tax Liabilities tax liability so arising;
(iib) any Liability Any liability or obligation of each any SELLER with respect to employment or consulting agreements, pension, profit-sharing, welfare or benefit plans, or amounts owing for commissions or compensation, termination, severance or other payments to present or former employees, officers, directors or shareholders of the Sellers that is specifically retained by the Sellers any SELLER, except bonuses, accrued vacation and other accrued expenses, assumed pursuant to Section 4.2(b) of this Agreement, including, without limitation, the Excluded LiabilitiesAgreement and except as provided in Section 9.16;
(iiic) any Liability Any liability or obligation of each of the Sellers or Parentany SELLER, or any consolidated group of which the Sellers are any SELLER is a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, including without limitation, limitation any sales or use tax obligations obligations, applicable to the transfer sale and purchase of the Purchased Assets Business or the transfer of the Contracts and/or Leases Assets as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parentany SELLER; provided, on a joint and several basishowever, BUYER agrees to be responsible for all Vehicle Transfer Taxes;
(ivd) Any liability (other than with respect to the Liabilities) to which any Liabilities of the parties may become subject as a result of the fact that the transactions contemplated by this Agreement are being effected without compliance with the provisions of any Bulk Transfer Law or any similar statute as enacted in any jurisdiction, domestic or foreign; or
(e) Any liability with respect to any claimsdispute, suitsclaim, actions complaint or causes of legal action arising out between the shareholders of any SELLER or between a shareholder of any SELLER and any SELLER, in any way resulting from or claimed to be resulting from the execution and delivery of this Agreement or the consummation of the operation of the Business on transactions contemplated hereby or prior to the Closing Date; and
(v) any Liabilities with respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing Dateotherwise.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent United shall be responsible for all of their respective Liabilities its liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities obligations not hereby expressly assumed by Buyer (collectively, the "Excluded Retained Liabilities"), and Buyer shall not assume, or in any way be liable or responsible for, any liabilities or obligations of such Excluded United, except the Assumed Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities Buyer shall also include not assume, or in any way be liable or responsible for, the following:
(ia) any Liability Any liability or obligation of each of the Sellers or Parent United arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, whether or not such transactions are consummated, including, but not limited to, any Tax Liabilities tax liability so arising;
(iib) any Liability Any liability or obligation of each United with respect to employment or consulting agreements, pension, profit-sharing, welfare or benefit plans, or amounts owing for commissions or compensation, termination, severance or other payments to present or former employees, officers, directors or shareholders of United, except with respect to accrued but unused vacation time and sick time to which employees hired by Buyer will be entitled as of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded LiabilitiesClosing Date;
(iiic) Any liability (other than with respect to the Assumed Liabilities) to which any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are parties may become subject as a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer result of the Purchased Assets or fact that the transfer of the Contracts and/or Leases as transactions contemplated by this AgreementAgreement are being effected without compliance with the provisions of any Bulk Transfer Law or any similar statute as enacted in any jurisdiction, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basisdomestic or foreign;
(ivd) any Liabilities Any liability or obligation under the Consolidated Omnibus Budget Reconciliation Act, as amended, and the Tax Reform Act of 1986, with respect to employees of United (whether salary, hourly or otherwise) who are not employed by Buyer in a position and at a base salary substantially equivalent to such employee's present position and base salary; or
(e) Any liability with respect to any claimsdispute, suitsclaim, actions complaint or causes of legal action arising out between Shareholder and United, in any way resulting from or claimed to be resulting from the execution and delivery of this Agreement or the consummation of the operation of the Business on transactions contemplated hereby or prior to the Closing Date; and
(v) any Liabilities with respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing Dateotherwise.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or take title to the Assets subject to, or in any way be liable or responsible for, any liabilities or obligations of such Excluded Seller (whether or not referred to in any Schedule or Exhibit hereto), except as specifically provided in SECTION 1.8, it being expressly acknowledged that it is the intention of the parties hereto that all liabilities and obligations that Seller has or may have in the future (whether accrued, absolute, contingent, unliquidated or otherwise, whether or not known to Seller, and whether due or to become due), other than the Assumed Liabilities, shall be and remain the liabilities and obligations of Seller. Without limiting the generality of the foregoing, Buyer shall not assume or take title to the Excluded Liabilities shall also include Assets subject to, or in any way be liable or responsible for:
(a) Any liabilities and obligations of Seller in respect of any claims, Proceedings or other matters described on SCHEDULE 1.9;
(b) Any liabilities and obligations of Seller relating to the following:excluded assets described in SECTION 1.4;
(c) Any liability or obligation of Seller under any mortgage, deed of trust, security agreement or financing statement, or any note, bond or other instrument or obligation secured thereby;
(d) Any liability or obligation of Seller in respect of any express or implied representation, warranty, agreement or guaranty made (or claimed to have been made) by Seller, or imposed (or asserted to be imposed) by operation of law, in respect of any service rendered or products produced, distributed or sold by Seller in connection with the Business on or prior to the Closing Date;
(e) Any liability or obligation of Seller existing at the Closing Date under any contracts or agreements included in the Assets which results from the breach, default or wrongful action or inaction of Seller;
(f) Subject to SECTION 7.9, any liability or obligation of Seller resulting from or relating to the employment relationship between Seller and any of Seller's present or former employees or the termination of any such employment relationship, including without limitation severance pay, accrued vacation and other similar benefits, if any, and any claims filed or which may be filed by or on behalf of any such present or former employee relating to the employment or termination of employment of any such employee by Seller, including without limitation any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation or workers' compensation;
(g) Subject to SECTION 7.9, any liability or obligation of Seller in respect of any agreement, trust, plan, fund or other arrangement under which benefits or employment is provided for any of Seller's present or former employees;
(h) Any income Tax liabilities or deficiencies, whether federal, state or local of Seller;
(i) any Liability or obligation of each of Any ad valorem property Taxes to the Sellers or Parent arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations extent applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business periods ending on or prior to the Closing Date; and
(vj) Any environmental liability arising under, or obligation imposed by, any Liabilities with respect Applicable Law pertaining to each health, safety or the environment that relates to the occupancy, ownership, operation, control or use of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on Business or Assets prior to the Closing Date or that is connected to the real property on which the Business is located as of the Closing Date.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything Buyer shall not be deemed by anything contained in this Agreement to the contrary notwithstanding, each of the Sellers have assumed and Parent shall be responsible for all of their respective Liabilities Seller hereby agrees to fully pay and obligations, which includes all Liabilities, related perform in any a prompt and timely manner and to indemnify Buyer and hold Buyer harmless with respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities following excluded liabilities (collectively, the "Excluded LiabilitiesEXCLUDED LIABILITIES"), and Buyer shall not assume, or in any way be liable or responsible for, any of such Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the following:):
(ia) Any liability of Seller to any Liability person or obligation entity the existence of each which constitutes a breach of the Sellers any covenant, agreement, representation or Parent arising out warranty of or Seller contained in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arisingAgreement;
(iib) any Liability or obligation Any liability of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, Seller for any foreign, federal, state, commonwealthlocal, county foreign or local taxes of any kind or natureother taxes, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable except to the transfer of extent liabilities or reserves therefor are included on the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basisClosing Date Balance Sheet;
(ivc) any Liabilities with Any non-contractual obligations and liabilities in respect of product liability claims related to any claims, suits, actions defective products (other than building products) made (if the date of manufacture is readily determinable) or causes of action arising out of sold by the operation of the Business on or Division prior to the Closing Date; and, including obligations and liabilities for property damage and related refunds, adjustments, allowances, repairs, exchanges, returns, claims of warranty of merchantability and other claims;
(vd) Any non-contractual obligations and liabilities in respect of product liability claims related to any defective building products made (if the date of manufacture is readily determinable) or sold by the Division prior to the Closing, including obligations and liabilities for property damage and related refunds, adjustments, allowances, repairs, exchanges, returns, claims of warranty of merchantability and other claims
(e) All Environmental Liabilities with respect relating to each the real property included in the Acquired Assets arising out of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) any facts or circumstances existing or arising on or prior to the Closing Date.;
(f) All obligations arising in respect of personal injury or property damage claims with respect to any real property included in the Acquired Assets as to which the date of such injury or loss (as determined in a manner consistent with the determination of the date of loss under an "occurrence based" insurance policy) was prior to the Closing Date;
(g) Except as set forth in SECTION 2.3(h) or 2.3(i) and except for liabilities under Contracts to be acquired by Buyer as a part of the Acquired Assets, any liability of Seller under any "EMPLOYEE BENEFIT PLANS" for any event occurring prior to the Closing Date or any obligation for benefits accrued prior to the Closing Date. "Employee Benefit Plans" means any employee pension benefit plans (as defined in Section (3)(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), employee welfare benefit plans (as defined in Section 3(1) of ERISA, bonus, deferred compensation, incentive compensation, stock ownership, phantom stock, disability, death, dependent care, employee assistance, scholarship or other plan or program, arrangement or understanding (whether or not covered by ERISA) maintained in whole or in part, contributed to, or required to be contributed to by Seller for the benefit of any present or former officer, employee, or director of Seller or any entity which is under common control with Seller within the meaning of Section 414 of the Internal Revenue Code of 1986 (the "CODE"), any such entity being hereafter referred to as a "COMMONLY CONTROLLED ENTITY");
Appears in 1 contract
Samples: Asset Purchase Agreement (K2 Inc)
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or take title to the Assets subject to, or in any way be liable or responsible for, any liabilities or obligations of such Excluded LiabilitiesSeller (whether or not referred to in any Schedule or Exhibit hereto), except as specifically provided in Section 1.7. Without limiting the generality of the foregoing, Buyer shall not assume or take title to the Excluded Liabilities shall also include Assets subject to, or in any way be liable or responsible for: (a) the following:
liabilities and obligations of Seller described on Schedule 1.8; (ib) any Liability liabilities and obligations of Seller in respect of the claims or Proceedings described on Schedule 1.8; (c) any liabilities and obligations of Seller relating to the excluded assets described in Section 1.2; (d) any liability or obligation of each Seller in respect of any express or implied representation, warranty, agreement, or guaranty made (or claimed to have been made) by Seller (other than the Sellers contractual obligations included in the Assumed Liabilities referred to in Section 1.7(d) above), or Parent arising out imposed (or asserted to be imposed) by operation of law, in respect of any products or equipment leased, produced, distributed, or sold by Seller in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior to the Closing Date; and
(ve) any Liabilities liability or obligation of Seller existing at or arising after the Closing Date under any leases, contracts, agreements, or Permits included in the Assets which results from the breach, default, or wrongful action or inaction of Seller prior to the close of business on the Closing Date; (f) any liability or obligation of Seller resulting from or relating to the employment relationship between Seller and any of Seller's present or former employees engaged in connection with respect to each the ownership or operation of the SellersAssets or the termination of any such employment relationship, including without limitation severance pay and other similar benefits, if any, and any claims filed on or prior to the Closing Date or which may thereafter be filed by or on behalf of any such present or former employee relating to the employment or termination of employment of any such employee by Seller, including without limitation any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation, or workers' Benefit Plans compensation; (defined hereing) and/or Benefit Arrangements any liability or obligation of Seller in respect of any agreement, trust, plan, fund, or other arrangement under which benefits or employment is provided for any of Seller's present or former employees engaged in connection with the ownership or operation of the Assets; or (defined hereinh) arising any income Tax liabilities or deficiencies, whether federal, state, or local, and any ad valorem property Taxes, in each such case to the extent applicable to periods ending on or prior to the Closing Date.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or take title to the Assets subject to, or in any way be liable or responsible for, any liabilities or obligations of such Excluded Seller (whether or not referred to in any Schedule or Exhibit hereto), except as specifically provided in Section 1.7, it being expressly acknowledged that it is the intention of the parties hereto that all liabilities and obligations that Seller has or may have in the future (whether accrued, absolute, contingent, unliquidated, or otherwise, whether or not known to Seller, and whether due or to become due), other than the Assumed Liabilities, shall be and remain the liabilities and obligations of Seller. Without limiting the generality of the foregoing, Buyer shall not assume or take title to the Excluded Liabilities shall also include Assets subject to, or in any way be liable or responsible for: (a) the following:
liabilities and obligations of Seller described on Schedule 1.8; (ib) any Liability liabilities and obligations of Seller in respect of the claims or Proceedings described on Schedule 1.8; (c) any liabilities and obligations of Seller relating to the excluded assets described in Section 1.2; (d) any liability or obligation of each Seller in respect of the Sellers any express or Parent arising out implied representation, warranty, agreement, or guaranty made (or claimed to have been made) by Seller, or imposed (or asserted to be imposed) by operation of law, in respect of any products or equipment leased, produced, distributed, or sold by Seller in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior to the Closing Date; and
(ve) any Liabilities liability or obligation of Seller existing at or arising after the Closing Date under any leases, contracts, agreements, or Permits included in the Assets which results from the breach, default, or wrongful action or inaction of Seller prior to the close of business on the Closing Date; (f) any liability or obligation of Seller resulting from or relating to the employment relationship between Seller and any of Seller's present or former employees engaged in connection with respect to each the ownership or operation of the SellersAssets or the termination of any such employment relationship, including without limitation severance pay and other similar benefits, if any, and any claims filed on or prior to the Closing Date or which may thereafter be filed by or on behalf of any such present or former employee relating to the employment or termination of employment of any such employee by Seller, including without limitation any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation, or workers' Benefit Plans compensation; (defined hereing) and/or Benefit Arrangements any liability or obligation of Seller in respect of any agreement, trust, plan, fund, or other arrangement under which benefits or employment is provided for any of Seller's present or former employees engaged in connection with the ownership or operation of the Assets; or (defined hereinh) arising any income Tax liabilities or deficiencies, whether federal, state, or local, and any ad valorem property Taxes, in each such case to the extent applicable to periods ending on or prior to the Closing Date, except for ad valorem taxes for the period prior to the Closing Date included in the Assumed Liabilities. For purposes of this Section, references to Seller shall include its predecessors in title.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement Notwithstanding anything to the contrary notwithstandingcontained herein, each except for the Assumed Liabilities, Buyer does not assume and will in no event be liable for any acts or omissions of Seller (relating to the Sellers Business or otherwise) or Holdings, or any Liabilities of Seller, the Business or Holdings to any Person under any Contracts or otherwise and Parent shall arising by operation of law or otherwise. Except for the Assumed Liabilities, the parties expressly understand and agree that Buyer is not assuming or agreeing to pay or be responsible for all any Liabilities of their respective Liabilities and obligationsSeller or Holdings, which includes all Liabilitiesfixed or contingent, related in disclosed or undisclosed, of any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assume, or in any way be liable or responsible for, any of such Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the following:
(i) any Liability or obligation of each of the Sellers or Parent arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreementnature whatsoever, including, without limitation, (i) any Liabilities which arise out of or result from any breach of contract, breach of warranty, negligence or other tort, or infringement on the Excluded Liabilities;
rights of others by Seller or Holdings or any employee or agent of Seller or Holdings, (ii) any Liabilities of Seller or Holdings for Federal, state or local income or other taxes, governmental charges or assessments, (iii) any Liability Liabilities which arise out of or obligation result from any breach of each of the Sellers any Federal, state or Parentlocal law, statute, rule, regulation, order, ordinance or decree by Seller or Holdings or any consolidated group employee or agent of which the Sellers are a memberSeller or Holdings, for (iv) any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereonsales taxes, including, without limitation, any sales and other transfer taxes (including, without limitation, penalties and interest) attributable to, arising out of or use tax obligations applicable to resulting from the transfer sale of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this AgreementInterest, it being hereby agreed which taxes shall be borne solely by the parties hereto that Seller or Holdings; (v) any regulatory orders and directives applicable to Seller except as specifically applicable to Seller's successors and assigns as may be provided in such obligations shall be paid by the Sellers regulatory orders and Parent, on a joint and several basis;
directives applicable to Seller; (ivvi) any Liabilities under any Excluded Contracts or relating to any Excluded Asset; (vii) any Liabilities for the payment of bonus, deferred compensation, pension, thrift, retirement, profit-sharing, disability, health, medical, hospital, insurance or other benefits to any employees of Seller or Holdings, including, but not limited to, any Liability to all or any employees for severance pay and other termination benefits, continuation coverage obligations arising under COBRA and the Code with respect to employees of Seller not hired by Buyer or under any claims, suits, actions Employee Benefit Plan; or causes of action (viii) any other Liability arising out of the ownership or use of the Assets or the operation of the Business on or prior to the Closing Date; and
(v) . All Liabilities of Seller that are not assumed by Buyer under this Section 2.4 will be and remain solely Seller's responsibility, and all Liabilities of Holdings will be and remain solely Holdings' responsibility. Buyer is not adopting, sponsoring, maintaining or assuming, or becoming obligated to contribute to, any Liabilities with respect to each of the Sellers' Seller Group's Employee Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing DatePlans.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cross Media Marketing Corp)
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or take title to the Assets subject to, or in any way be liable or responsible for, any liabilities or obligations of such Excluded Seller or Oxford (whether or not referred to in any Schedule or Exhibit hereto), except as specifically provided in Section 1.4, it being expressly acknowledged that it is the intention of the parties hereto that all liabilities and obligations that Seller or Oxford have or may have in the future (whether accrued, absolute, contingent, unliquidated, or otherwise, whether or not known to Seller or Oxford, and whether due or to become due), other than the Assumed Liabilities, shall be and remain the liabilities and obligations of Seller and Oxford. Without limiting the generality of the foregoing, Buyer shall not assume or take title to the Excluded Liabilities shall also include the followingAssets subject to, or in any way be liable or responsible for:
(ia) any Liability liability or obligation of each Seller or Oxford under any mortgage, deed of the Sellers trust, security agreement, or Parent arising out financing statement, or any note, bond, or other instrument or obligation secured thereby,
(b) any liability or obligation of Seller or Oxford in respect of any express or implied representation, warranty, agreement, or guaranty made (or claimed to have been made) by Seller or Oxford, or imposed (or asserted to be imposed) by operation of law, in respect of any products produced or services rendered, distributed, or sold by Seller in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior to the Closing Date; and,
(vc) any Liabilities liability or obligation of Seller or Oxford existing at or arising after the Closing Date under any leases, contracts, insurance policies, agreements, or Permits, whether or not included in the Assets, which results from the breach, default, or wrongful action or inaction of Seller or Oxford prior to the close of business on the Closing Date (or thereafter),
(d) any liability or obligation of Seller resulting from or relating to the employment relationship between Seller and any of Seller's present or former employees engaged in connection with respect to each the ownership or operation of the Sellers' Benefit Plans Assets or the termination of any such employment relationship, including without limitation severance pay, bonuses, commissions (defined herein) and/or Benefit Arrangements (defined herein) arising other than those incurred since March 1, 1999 pursuant to the Subservicer Agreement), and other similar benefits, if any, and any claims filed on or prior to the Closing DateDate or which may thereafter be filed by or on behalf of any such present or former employee relating to the employment or termination of employment of any such employee by Seller, including without limitation any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation, employee benefits or workers' compensation,
(e) any liability or obligation of Seller or Oxford in respect of any agreement, trust, plan, fund, or other arrangement under which benefits or employment is provided for any of Seller's present or former employees engaged in connection with the ownership or operation of the Assets, and
(f) any income or payroll tax liabilities or deficiencies, whether federal, state, or local, and any ad valorem property taxes, in each such case to the extent applicable to periods ending on or prior to the Closing Date (or February 28, 1999 for persons subject to the Subservicer Agreement). For purposes of this Section, references to Seller shall include their predecessors in title.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything The Provider covenants, represents and warrants that the Buyer shall not be deemed by anything contained in this Agreement to have assumed liabilities relating to, or arising out of, the contrary notwithstandingAssets or any other business, each property or assets of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assume, or in any way be liable or responsible for, any of such Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the following:
(i) any Liability or obligation of each of the Sellers or Parent arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this AgreementProvider, including, without limitation, the Excluded following (hereinafter collectively referred to as “Retained Liabilities”):
(a) Any liability of the Provider to any person or entity;
(iiib) any Liability or obligation of each Any liability of the Sellers or Parent, or any consolidated group of which the Sellers are a member, Provider for any foreign, federal, state, commonwealthmunicipal, county local or local taxes foreign taxes, assessments, additions to tax, interest, penalties, deficiencies, duties, fees and other government charges or impositions of each and every kind or description, whether measured by properties, assets, wages, payroll, purchases, value added, payments, sales, use, business, capital stock, surplus or income with respect to ownership of the Assets up to and including the related Closing Date with respect to such Assets;
(c) Any liability or obligation (contingent or otherwise) of the Provider to any person or entity arising out of any litigation, claim, arbitration, or other proceeding;
(d) Any liabilities or obligations of any kind whatsoever relating to any action or nature, or any taxes levied inaction by any other legitimate taxing authority, person or any interest or penalties thereonentity, including, without limitation, any sales of the Provider’s officers, directors, shareholders, employees, agents, representatives or use tax obligations applicable independent contractors, relating in any way to the transfer Healthcare Services rendered or provided by any of them in connection with the Accounts or the servicing of any of the Purchased Assets or Accounts in the transfer case of such servicing up to and including the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basisClosing Date;
(ive) Any liability or obligation (contingent or otherwise) of the Provider arising out of defects in or mislabeling of, or damages to persons or property arising out of defects or mislabeling of, products (including, without limitation, prescription medications) manufactured, sold, or prescribed by the Provider in connection with any Liabilities of the Accounts;
(f) Any claim by a third party payor for refund or rebate of amounts paid to the Provider, Buyer or otherwise with respect to any claimsAccount created or generated by the Provider, suits, actions including any claim for repayment of funds paid in error;
(g) Any liability or causes of action arising out obligation of the operation Provider to compensate any person or entity, including, without limitation, any agent, licensor, supplier, distributor or customer of the Business on Provider, in respect of any rendered or prior to provided in connection with the Closing DateAccounts; and
(vh) Any recapture, set-off, or other claim made by any Liabilities with respect to each of third party payor against the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing DateAccounts.
Appears in 1 contract
Samples: Purchase Agreement (Fresh Start Private Management, Inc.)
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent Seller shall be responsible for all of their respective Liabilities its liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), obligations not hereby expressly assumed by Buyer and Buyer shall not assume, or in any way be liable or responsible for, any liabilities or obligations of such Seller except as specifically provided in Section 2.3(a) (collectively, the liabilities and obligations that are not assumed being referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities Buyer shall also include not assume the following:
(i) all liabilities and obligations of Seller or Saks or any Liability of their Affiliates arising on or obligation of each prior to the Effective Time under or in respect of the Sellers or Parent arising out Real Estate, Real Estate Agreements, Leasehold Interests, Equipment, Inventory, Contracts, Warranties and Purchase Orders, including all liabilities and obligations due to a breach of or in connection with the negotiation and preparation of this Agreement and the consummation and performance any of the transactions contemplated hereby, foregoing on or any Tax Liabilities so arisingprior to the Effective Time;
(ii) all unpaid accounts payable of Seller or Saks or any Liability of their Affiliates and all accrued expenses of Seller or obligation Saks or any of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilitiestheir Affiliates;
(iii) except as expressly assumed by Buyer pursuant to Section 8.3, all liabilities and obligations with respect to Store Employees, Seller Plans, Saks Plans or other employee benefit policies and practices of Seller, Saks or any Liability or obligation of each their Affiliates, including liabilities and obligations under the Saks' Severance Pay Plan, retention bonuses called for under the retention arrangements described in Schedule 5.16(e) of the Sellers Seller Disclosure Schedule or Parentotherwise, any entitlements under COBRA with respect to termination of employment of any Store Employee by Seller, Saks or any of their respective Affiliates and compensation and benefits under any state workers' compensation or similar law payable following the Effective Time to or with respect to any Transferred Employee, or to any consolidated group former employee of the Stores, who in either case was employed at the Stores on any date, on or prior to the Effective Time, that the claim arose or the incident on which the Sellers are a memberclaim is based occurred;
(iv) all payment obligations relating to compensation and commissions that have been earned but have not been paid as of the Effective Time to Transferred Employees;
(v) all liabilities and obligations arising from litigation, for any foreignarbitration, federal, state, commonwealth, county administrative or local taxes other proceedings to the extent related to the Assets or the Stores or the operation of any kind the Parisian Business generally on or nature, or any taxes levied by any prior to the Closing Date (other legitimate taxing authority, or any interest or penalties thereonthan the obligations of Buyer pursuant to Section 8.11), including, without limitation, any sales customer liability claims, and all performance obligations under any product recall or use tax obligations applicable any non-financial settlement obligation to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect extent related to any claims, suits, actions or causes of action arising out of the operation of the Business Stores on or prior to the Closing Date; and;
(vvi) any Liabilities with respect to each all liabilities and obligations arising from all gift certificate, gift card, merchandise voucher, coupon, refund or other loyalty, frequent shopper or similar program of Saks (collectively, the "Saks Gift Programs") or Seller (collectively, the "Seller Gift Programs") reward redemptions submitted by customers of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising Stores for gift certificates, gift cards, merchandise vouchers, coupons, refunds or other loyalty, frequent shopper or similar program rewards purchased, issued or earned in connection with the Stores on or prior to the Closing Cut-Off Date except to the extent assumed by Buyer pursuant to Section 8.7;
(vii) all liabilities and obligations arising from all return policies of Saks (the "Saks Return Policies") or Seller (the "Seller Return Policies") for merchandise purchased in the Stores on or prior to the Cut-Off Date except to the extent assumed by Buyer pursuant to Section 8.7;
(viii) any claims (including product-liability and infringement claims) relating to goods sold or services provided at the Stores on or prior to the Cut-Off Date (other than the obligations of Buyer pursuant to Section 8.11);
(ix) any claims asserted by Store Employees or by dependents of such Store Employees, for acts or omissions occurring on or prior to the Cut-Off Date (other than claims of Transferred Employees expressly assumed by Buyer pursuant to Section 8.3);
(x) all liabilities and obligations relating to the ownership or condition of the Assets (including environmental conditions) on or prior to the Cut-Off Date;
(xi) all liabilities and obligations with respect to Taxes for which Seller is liable under Section 8.2;
(xii) any liability or obligation for money borrowed (it being understood that the liabilities and obligations under any capital lease set forth in Exhibit E is an Assumed Liability);
(xiii) any liability or obligation for costs and expenses (other than Transfer Taxes as set forth in Section 8.2 and as set forth in Section 8.6 or as otherwise expressly set forth in this Agreement) in connection with the negotiation and execution of this Agreement or the consummation of the transactions contemplated hereby;
(xiv) any liability or obligation of Seller under this Agreement or under any other agreement between Seller or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, entered into on or after the date of this Agreement in accordance with the terms hereof;
(xv) any liability or obligation to the extent related to the Excluded Assets (except as provided in Section 2.2 or 2.4) or any other assets not transferred to and not purchased by Buyer; and
(xvi) any liability or obligation relating to, resulting from or arising out of any former operations or properties of Saks or any of its Affiliates or of Seller or any of its Affiliates that have been discontinued or disposed of prior to the Cut-Off Date. Seller shall, or shall cause its Affiliates to, pay, perform and fully observe all Excluded Liabilities.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assumeassume or take title to the Assets subject to, nor shall Triangle or Buyer in any way be liable or responsible for, any liabilities or obligations of Sellers (whether or not referred to in any Schedule or Exhibit hereto), except as specifically provided in Section 1.4, it being expressly acknowledged that it is the intention of the parties hereto that all liabilities and obligations that Sellers have or may have in the future (whether accrued, absolute, contingent, unliquidated, or otherwise, whether or not known to Sellers, and whether due or to become due), other than the Liabilities, shall be and remain the liabilities and obligations of Sellers. Without limiting the generality of the foregoing, and except as specifically provided in Section 1.4, Buyer shall not assume or take title to the Assets subject to, or in any way be liable or responsible for: ( )any liabilities or obligations of Sellers whether or not relating to the Assets or the Business, any of such Excluded Liabilities. Without limiting and whether or not arising or asserted prior to the generality of the foregoingClosing, the Excluded Liabilities shall also include the following:
(ia) any Liability liability or obligation of each Sellers under any mortgage, deed of trust, security agreement, or financing statement, or any note, bond, or other instrument or obligation secured thereby, (b) any liability or obligation of Sellers existing at or arising after the Closing Date under any leases, contracts, agreements, or Permits included in the Assets that results from the material breach, default, or wrongful action or inaction of Sellers prior to the close of business on the Closing Date, (c) any liability or Parent arising out obligation of Sellers resulting from or relating to the employment relationship between any Seller and any Seller's present or former employees engaged in connection with the negotiation and preparation of this Agreement and the consummation and performance ownership or operation of the transactions contemplated herebyAssets or the Business or the termination of any such employment relationship, including without limitation severance pay and other similar benefits, if any, and any claims filed on or prior to the Closing Date or that may thereafter be filed by or on behalf of any such present or former employee relating to the employment or termination of employment of any such employee by a Seller, including without limitation any claim for wrongful discharge, breach of contract, unfair labor practice, employment discrimination, unemployment compensation, or any Tax Liabilities so arising;
workers' compensation, (iid) any Liability liability or obligation of each Sellers in respect of any agreement, trust, plan, fund, or other arrangement under which benefits or employment is provided for any Seller's present or former employees engaged in connection with Sellers' ownership or operation of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this AgreementBusiness, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(ive) any Liabilities with respect liabilities or deficiencies for any Taxes, to any claims, suits, actions the extent applicable to periods (or causes of action arising out of the operation of the Business portions thereof) ending on or prior to the Closing Date; and
(v) any Liabilities with respect . For purposes of this Section 1.10, references to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing Date.Sellers shall include predecessors in title. 10
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent Seller shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities")for, and Buyer shall not assume, assume or in any way be liable or responsible for, any liabilities or obligations of such Seller not specifically assumed in Section 2.01(b)(i) (the "CRC Excluded Liabilities"). Without limiting the generality of the foregoing, unless specifically assumed by Buyer in Section 2.01(b)(i), the CRC Excluded Liabilities shall also include the followinginclude:
(iA) any Liability liability or obligation under Contracts and other agreements to which Seller is a party or by or to which it or any of the CRC Assets are bound or subject that are not reflected on Schedules 5.13(a) through 5.13(l), other than Seller's obligations and liabilities under Contracts entered into in the ordinary course of business after the date of this Agreement;
(B) any liability or obligation of each Seller arising out of (a) the Sellers conduct of CRC's Business prior to the Closing Date, or Parent (b) other than as set forth in Article 10 hereof, any liability or obligation of Times Mirror or Seller to any Company Employee (including any liability for accrued salary or wages through the Closing Date, or any stay bonus, performance bonus or similar bonus arrangement entered into by Times Mirror or Seller with such Company Employee prior to the Closing Date), or, except with respect to liabilities and other obligations under the Contracts assumed by Buyer pursuant to Section 2.01(b)(i), agents or contractors;
(C) any liability or obligation of Seller owing to any shareholder, subsidiary or Affiliate of Seller;
(D) except as otherwise provided in Section 13.12, any liability or obligation of Seller arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, but not limited to, any liability to which any of the parties may become subject as a result of the fact that the transactions contemplated by this Agreement are being effected, at the request of Seller, without limitation, compliance with the Excluded Liabilitiesprovisions of any bulk sales act or any similar statute as enacted in any jurisdiction;
(iiiE) any Liability liability or obligation of each Seller under any real estate lease or sublease, except for liability on leases that are part of the Sellers or ParentCRC Assets, or any consolidated group of which provided, however, that Buyer's liability is limited to obligations under such leases arising after the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basisClosing Date;
(ivF) any Liabilities with respect liabilities arising under Environmental Law attributable to or incurred as a result of any claimsacts, suitsomissions, actions or causes of action arising out of the operation of the Business on or conditions prior to the Closing Date; and, including, but not limited to, liabilities for the treatment, storage, or disposal of Hazardous Materials;
(vG) except as otherwise provided in Section 13.12, any liabilities or obligations for Taxes of Times Mirror, Seller or any Affiliate of Times Mirror or Seller, and Taxes relating to the CRC Assets for the Tax period (or portion thereof) ending on the Closing Date but unpaid as of the Closing Date;
(H) any Liabilities with liabilities attributable to or incurred in respect to each of the Sellers' Benefit Plans CRC Excluded Assets;
(defined hereinI) and/or Benefit Arrangements (defined herein) arising on any liability or obligation relating to any international sales made to Times Mirror or any of its Affiliates prior to the Closing Date;
(J) any liability or obligation under any employee benefit plan (as defined in ERISA), including without limitation any liability of Seller or Times Mirror under ERISA or to the Pension Benefit Guaranty Corporation;
(K) any liability with respect to the matter described on Schedule 5.14 related to the potential claim of C.F. Saver Company; or
(L) any liability for California sales taxes for periods prior to the Closing Date in excess of $75,000.
Appears in 1 contract
Samples: Asset Purchase Agreement (Information Holdings Inc)
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assume, or nor in any way be liable or responsible for, any liabilities or obligations of such Excluded LiabilitiesSeller except as specifically provided in Section 2.1. Without limiting the generality of the foregoing, the Excluded Liabilities Buyer shall also include not assume the following:
(ia) except for the reasonable fees and expenses of Seller's legal counsel, accountants and auditors if the transactions contemplated hereby are consummated, any Liability liability or obligation of each of the Sellers or Parent Seller arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or including without limitation on the foregoing, any Tax Liabilities liability so arising;
(iib) any Liability liability or obligation under Contracts to which Seller is a party or by or to which it or its assets, properties or rights are bound or subject which are not described in Schedules 2.1(b), 5.4(b), 5.8 or 5.30 or which are entered into by Seller from the date hereof through the Closing Date but which are not in the ordinary course of business or which are otherwise in violation of the provisions of Section 5.6, 5.29 or 7.1;
(c) except for accrued, but unpaid payroll Taxes for the employees of Seller that are hired by Buyer, but only to the extent any such Taxes were not due and payable prior to Closing, liabilities with respect to Taxes, including any contractual liability with respect to Taxes of another Person, for any taxable period or portion thereof ending on or before the Closing Date;
(d) other than as specifically described on Schedule 5.19, any liability or obligation of each of Seller to the Sellers that is specifically retained by the Sellers pursuant Shareholders or to this Agreement, including, without limitation, the Excluded Liabilitiestheir respective Affiliates;
(iiie) any Liability liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claims, suits, actions or causes of action Seller arising out of the operation or relating to any breach of a representation, warranty, covenant or agreement of Seller contained herein; or
(f) any liability or obligation relating to any severance payment, change of control payment or other payment or obligation any employee of Seller becomes entitled to as a result of the Business on or prior to the Closing Date; and
(v) any Liabilities with respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing Datetransaction contemplated hereby.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything Buyer shall not be deemed by anything contained in this Agreement to the contrary notwithstanding, each of the Sellers have assumed and Parent shall be responsible for all of their respective Liabilities Seller hereby agrees to fully pay and obligations, which includes all Liabilities, related perform in any a prompt and timely manner and to indemnify Buyer and hold Buyer harmless with respect to the Business and/or following excluded liabilities (the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assume, or in any way be liable or responsible for, any of such Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the following:“EXCLUDED LIABILITIES”):
(ia) Any liability of Seller to any Liability person or obligation entity the existence of each which constitutes a breach of the Sellers any covenant, agreement, representation or Parent arising out warranty of or Seller contained in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arisingAgreement;
(iib) any Liability or obligation Any liability of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, Seller for any foreign, federal, state, commonwealthlocal, county foreign or local taxes of any kind or natureother taxes, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable except to the transfer of extent liabilities or reserves therefor are included on the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basisClosing Date Balance Sheet;
(ivc) any Liabilities with Any non-contractual obligations and liabilities in respect of product liability claims related to any claims, suits, actions defective products (other than building products) made (if the date of manufacture is readily determinable) or causes of action arising out of sold by the operation of the Business on or Division prior to the Closing Date; and, including obligations and liabilities for property damage and related refunds, adjustments, allowances, repairs, exchanges, returns, claims of warranty of merchantability and other claims;
(vd) Any non-contractual obligations and liabilities in respect of product liability claims related to any defective building products made (if the date of manufacture is readily determinable) or sold by the Division prior to the Closing, including obligations and liabilities for property damage and related refunds, adjustments, allowances, repairs, exchanges, returns, claims of warranty of merchantability and other claims
(e) All Environmental Liabilities with respect relating to each the real property included in the Acquired Assets arising out of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) any facts or circumstances existing or arising on or prior to the Closing Date.;
(f) All obligations arising in respect of personal injury or property damage claims with respect to any real property included in the Acquired Assets as to which the date of such injury or loss (as determined in a manner consistent with the determination of the date of loss under an “occurrence based” insurance policy) was prior to the Closing Date;
(g) Except as set forth in SECTION 2.3(h) or 2.3(i) and except for liabilities under Contracts to be acquired by Buyer as a part of the Acquired Assets, any liability of Seller under any “EMPLOYEE BENEFIT PLANS” for any event occurring prior to the Closing Date or any obligation for benefits accrued prior to the Closing Date. “Employee Benefit Plans” means any employee pension benefit plans (as defined in Section (3)(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), employee welfare benefit plans (as defined in Section 3(1) of ERISA, bonus, deferred compensation, incentive compensation, stock ownership, phantom stock, disability, death, dependent care, employee assistance, scholarship or other plan or program, arrangement or understanding (whether or not covered by ERISA) maintained in whole or in part, contributed to, or required to be contributed to by Seller for the benefit of any present or former officer, employee, or director of Seller or any entity which is under common control with Seller within the meaning of Section 414 of the Internal Revenue Code of 1986 (the “CODE”), any such entity being hereafter referred to as a “COMMONLY CONTROLLED ENTITY”);
Appears in 1 contract
Samples: Asset Purchase Agreement (K2 Inc)
Liabilities Not Assumed by Buyer. Anything Except for Assumed Liabilities, anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assume, or nor in any way be liable or responsible for, any other liabilities or obligations of such Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the following:
(i) any Liability or obligation of each of the Sellers or Parent arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, Seller or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes its Affiliates of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable but not limited to the transfer following liabilities or obligations of Seller:
(a) any liability of Seller under any Contract for brokerage commissions, investment banking or finder’s fees or expenses or similar compensation in connection with the Purchased Assets or the transfer of the Contracts and/or Leases as transactions contemplated by this Agreement, it being hereby agreed Agreement payable by the parties hereto that such obligations shall be paid by the Sellers Seller to Sun Mergers and Parent, on a joint and several basisAcquisitions or any other Person;
(ivb) Taxes payable by Seller and fines and penalties with respect thereto, including all Taxes relating to periods on and prior to Closing;
(c) Seller’s liabilities and obligations under Article VIII of this Agreement;
(d) any Liabilities with respect liability or obligation of Seller relating to any claimsseverance payment, suits, actions change of control payment or causes other payment or obligation any employee of action Seller becomes entitled to as a result of the transaction contemplated hereby;
(e) any liability or obligation of Seller arising out of, in connection with or relating to any Excluded Asset; or
(f) any liability or obligation of the Seller arising out of, in connection with or relating to Seller’s operation of the Business on or prior to the Closing Date; and
(v) Closing, excluding any Liabilities with respect Assumed Liabilities. The specific liabilities not being assumed by Buyer pursuant to each of this Agreement are hereinafter sometimes collectively referred to as the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing Date“Retained Liabilities.”
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement Notwithstanding anything to the contrary notwithstandingin this Agreement, each of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities (collectively, the "Excluded Liabilities"), and Buyer shall not assume, or in any way be liable or responsible forfor any, and Unipath shall, and shall procure that its Affiliates shall, pay, perform and discharge all, obligations and liabilities of them, direct or indirect, known or unknown, fixed or unfixed, choate or inchoate, liquidated or unliquidated, secured or unsecured, xxxxxxd, absolute, contingent or otherwise, except for the Assumed Liabilities (collectively, the "Excluded Liabilities") and Unipath shall hold Buyer harmless with respect to the Excluded Liabilities. For the avoidance of doubt, the term Assumed Liabilities does not include any of such the Excluded Liabilities and the term Excluded Liabilities includes all liabilities and obligations of Unipath or any of its Affiliates (including liabilities and obligations imposed by operation of Law) other than the Assumed Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall also include the followingfollowing obligations and liabilities:
(i) any Liability liability or obligation of each Unipath or any of its Affiliates arising from or relating to the Sellers Excluded Businesses or Parent the business, if any, of such entities in the Excluded Fields;
(ii) any liability or obligation of Unipath or any of its Affiliates arising out of or in connection with the negotiation and preparation of this Agreement and or the consummation and performance of the transactions contemplated hereby, or including any Tax Liabilities liability for Taxes so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability liability or obligation (other than Assumed Liabilities) arising under, relating to or resulting from any asset of each of the Sellers Unipath or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any its Affiliates other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of than the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basisAssets;
(iv) any Liabilities liability or obligation of Unipath or any of its Affiliates arising (A) from their failure to perform, or negligent performance of, their obligations under, or (B) out of or relating to any breach or claim of breach of a representation, warranty, covenant or agreement of Unipath or any of its Affiliates contained in, any of the Business Contracts;
(v) any liability, obligation or expense of any kind or nature relating to Taxes owed by Unipath or any of its Affiliates (including any contractual liability with respect to Taxes of another Person); provided that Transfer Taxes shall be paid in the manner set forth in Section 5.2 hereof;
(vi) any claimsliability or obligation to any of the directors, suitsofficers or Affiliates of Unipath;
(vii) any liability, actions obligation, cost or causes expense of action Unipath or any of its Affiliates arising out of the operation or relating to any Legal Proceeding to which Unipath or any of the Business on its Affiliates is or was a party and that relates to any time at or prior to the Closing Date; and(regardless of whether the Legal Proceeding is commenced before or after the Closing), and any contingency reserve related thereto;
(vviii) any Liabilities liability or obligation of Unipath or its Affiliates with respect to each any Indebtedness or Contingent Obligations (including any accrued interest, fees and any penalties thereon);
(ix) any liability or obligation of Unipath or its Affiliates to or with respect to Employees, former employees, consultants and former consultants and Benefit Plans and other employee and employment-related liabilities that are excluded under Section 1.6 below;
(x) any accounts payable;
(xi) any product warranty, product liability or product returns, rebates, coupons, allowances or other discounting and promotional commitments with respect to any product line of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or of the Purchased UK Operations that was discontinued prior to the Closing Date;
(xii) any liability or obligation of Unipath or its Affiliates arising out of or relating to the failure of Unipath or its Affiliates to obtain any Governmental Licenses material to or necessary for the conduct of the CD Business and/or the Purchased UK Operations;
(xiii) any liability or obligation of Unipath or its Affiliates arising out of or relating to IMA Facilities under applicable Environmental Laws;
(xiv) any liability or obligation of Unipath or its Affiliates to fund or finance any pension or similar liabilities, including any liability or obligation for which the Buyer may become liable by reason of participating in any pension scheme of Unipath or its Affiliates for the purpose of providing pension benefits to the Employees or any of them after Closing (other than contributions to provide such benefits in respect of service after Closing) and any debt for which the Buyer may at any time become liable under section 75 of the Pensions Act 1995 insofar as such debt is attributable to the service of the Employees prior to Closing or to service of any other members or former members of any such pension scheme at any time; and
(xv) all liabilities and obligations of Unipath or its Affiliates under this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Inverness Medical Innovations Inc)
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent SELLER shall be responsible for all of their respective Liabilities its liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities obligations not hereby expressly assumed by BUYER (collectively, the "Excluded Retained Liabilities"), and Buyer BUYER shall not assume, or in any way be liable or responsible for, any liabilities or obligations of such Excluded SELLER, except the Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities BUYER shall also include not assume, or in any way be liable or responsible for, the following:
(ia) any Liability Any liability or obligation of each of the Sellers or Parent SELLER arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, whether or not such transactions are consummated, including, but not limited to, any Tax Liabilities tax liability so arising;
(iib) any Liability Any liability or obligation of each SELLER with respect to employment or consulting agreements, pension, profit-sharing, welfare or benefit plans, or amounts owing for commissions or compensation, termination, severance or other payments to present or former employees, officers, directors or shareholders of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded LiabilitiesSELLER;
(iiic) any Liability Any liability or obligation of each of the Sellers or ParentSELLER, or any consolidated group of which the Sellers are SELLER is a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, including without limitation, limitation any sales or use tax obligations obligations, applicable to the transfer sale and purchase of the Purchased Assets Business or the transfer of the Contracts and/or Leases Assets as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basisSELLER;
(ivd) Any liability (other than with respect to the Liabilities) to which any Liabilities of the parties may become subject as a result of the fact that the transactions contemplated by this Agreement are being effected without compliance with the provisions of any Bulk Transfer Law or any similar statute as enacted in any jurisdiction, domestic or foreign;
(e) Any liability or obligation under the Consolidated Omnibus Budget Reconciliation Act, as amended, and the Tax Reform Act of 1986, with respect to employees of SELLER (whether salary, hourly or otherwise) who are not employed by BUYER in a position and at a base salary substantially equivalent to such employee's present position and base salary;
(f) Any liability with respect to any claimsdispute, suitsclaim, actions complaint or causes of legal action arising out between the shareholders of SELLER or between a shareholder of SELLER and SELLER, in any way resulting from or claimed to be resulting from the execution and delivery of this Agreement or the consummation of the operation of the Business on transactions contemplated hereby or prior to the Closing Dateotherwise; andor
(vg) any Liabilities with respect and all amounts for accrued and unused vacation time and sick pay owed to each employees for vacation time and sick pay accrued and unused up to and including March 31, 2000, which amounts shall be paid to, and proof of payment submitted to BUYER, no later than ten (10) days following the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) Closing. All such amounts and any dispute or disputes arising on or prior from such accrued and unused vacation time and sick pay shall be treated as Damages, and shall be subject to the Closing DateSELLER's indemnity under Article 12 hereof.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstandingAll debts, each liabilities and obligations of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely Seller other than the Assumed Liabilities (collectively, are referred to herein as the "Excluded Liabilities"), and ." Buyer shall not assume, undertake, be bound by or in any way be liable or responsible for, any of such for Excluded Liabilities. Without limiting the generality definition of the foregoingExcluded Liabilities, the Excluded Liabilities shall also include includes any debts or liabilities of Seller consisting of or arising out of, in connection with or otherwise relating to the following:
(ia) any Liability debts, liabilities or obligation obligations of each of the Sellers or Parent arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or any Tax Liabilities so arising;
Seller either (iiA) any Liability or obligation of each of the Sellers that is specifically retained by the Sellers pursuant to this Agreement, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable not related to the transfer of the Purchased Assets Diamonair Product Line or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(ivB) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior related to the Closing Date; and
(v) any Liabilities with respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) Diamonair Product Line and arising on or prior to the Closing Effective Date;
(b) debts, liabilities or obligations to any affiliate of Seller;
(c) except as expressly provided in Sections 1.5(c) and (d), any claims whether made before or after the Effective Date, or any proceeding or other action, whether commenced before or after the Effective Date, arising out of any state of facts existing as of the Effective Date (regardless of whether or not referred to in this Agreement or otherwise disclosed or known to Buyer);
(d) any Contract not effectively assigned to Buyer and which Buyer does not directly or indirectly receive the benefits of;
(e) indebtedness for borrowed money;
(f) accounts payable;
(g) product liabilities relating to products either manufactured by or on behalf of Seller or shipped by Seller on or prior to the Effective Date;
(h) environmental liabilities arising or relating to any actions or state of facts existing on or prior to the Effective Date;
(i) employee liabilities (including those under collective bargaining or other labor agreements, or employee benefit plans) existing on or prior to the Effective Date or, except as set forth in Section 6.7(c), arising on account of the consummation of the transactions contemplated by this Agreement (including severance pay);
(j) violations of law arising or relating to any actions or state of facts existing on or prior to the Effective Date;
(k) federal, state, local and foreign income, sales, value added, franchise and other taxes attributable to any period or portion thereof that includes any date prior to or including the Effective Date (other than transfer taxes as provided in Section 9.2); and
(l) the debts, obligations or liabilities of any person or entity owning or operating the Diamonair Product Line (or any portion thereof) or any other business of Seller prior to Seller.
Appears in 1 contract
Samples: Purchase and Sale Agreement (D G Jewellery of Canada LTD)
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent shall be responsible for all liabilities and obligations of their respective Liabilities Sellers and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities not hereby expressly assumed by Buyer (collectively, the "Excluded Retained Liabilities"), and Buyer shall not assume, or in any way be liable or responsible for, any liabilities or obligations of such Excluded any Seller or of the Business, except the Assumed Liabilities. Without limiting the generality of the foregoing, Buyer shall not assume, or in any way be liable or responsible for, the Excluded Liabilities shall also include the followingfollowing Retained Liabilities:
(ia) any Liability Any liability or obligation of each of the Sellers or Parent any Seller arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or including any Tax Liabilities liability so arising;
(iib) any Liability Any liability or obligation of each any Seller with respect to employment or consulting agreements, pension, profit sharing, health, welfare and other Benefit Plans, or amounts owing for commissions or compensation, termination, severance or other payments to the present or former employees, officers, directors, managers, partners, shareholders or members of any Seller, including any of the Sellers contribution history or existing withdrawal liabilities associated with any multi-employer pension plan and any withdrawal liability directly or indirectly resulting from the sale of the Assets under Subtitle E, Part 1 of ERISA, in each case that is specifically retained are attributable to conditions existing or events occurring prior to the Closing or that are triggered by the Sellers pursuant consummation of the transactions contemplated by this Agreement other than the liabilities referred to this Agreement, including, without limitation, the Excluded Liabilitiesin Article 3.1(e) which Buyer assumes;
(iiic) Any obligations or liabilities with respect to the present or former employees, officers, directors, managers, partners, shareholders or members of any Liability Seller, including claims under any federal, state, local or other laws, statutes, rules, regulations, ordinances, codes, orders or authorizations, including worker's compensation claims, XXXXX claims, COBRA claims, age claims, civil rights laws claims, claims under the Fair Labor Standards Act, claims under the Labor Management Relations Act, employment discrimination claims of all types, sexual harassment claims, pension fund liability (whether for current or unfunded accrued liabilities), Americans With Disabilities Act claims and Occupational Safety and Health Act claims, and any obligations or liabilities with respect to the consultants of any Seller.
(d) Any liability or obligation of each any Seller arising under any Assumed Contract that is attributable to any violation, breach or failure to perform occurring prior to
(e) Any liability or obligation of the Sellers or Parentany Seller, or any consolidated group of which the Sellers are any Seller is a member, for any foreign, federal, state, commonwealth, county or local taxes Taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(ivf) any Liabilities Any liability or obligation under COBRA or the Tax Reform Act of 1986, with respect to employees of any claimsSeller (whether salary, suits, actions hourly or causes of action otherwise) who are not employed by Xxxxx immediately upon Closing
(g) Any liability or obligation arising out of of, relating to or in connection with the operation of the Business on or prior to the Closing DateSpecified Litigation; andor
(vh) Any liability or obligation of any Liabilities with Seller in respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing Dateany Excluded Asset.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to the contrary notwithstanding, each of the Sellers and Parent Seller shall be responsible for all liabilities and obligations of their respective Liabilities Seller and obligations, which includes all Liabilities, related in any respect to the Business and/or the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities not hereby expressly assumed by Buyer (collectively, the "Excluded Retained Liabilities"), and Buyer shall not assume, or in any way be liable or responsible for, any liabilities or obligations of such Excluded Seller or of the Business, except the Assumed Liabilities. Without limiting the generality of the foregoing, Buyer shall not assume, or in any way be liable or responsible for, the Excluded Liabilities shall also include the followingfollowing Retained Liabilities:
(ia) any Liability Any liability or obligation of each of the Sellers or Parent Seller arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby, or including any Tax Liabilities liability or claims of Shareholders so arising;
(iib) any Liability Any liability or obligation of each Seller with respect to employment or consulting agreements, pension, profit sharing, health, welfare and other Benefit Plans, or amounts owing for commissions or compensation, termination, severance or other payments to the present or former employees, officers, directors, managers, partners or shareholders of Seller, including any of the Sellers contribution history or existing withdrawal liabilities associated with any multi-employer pension plan and any withdrawal liability directly or indirectly resulting from the sale of the Assets under Subtitle E, Part 1 of ERISA, in each case that is specifically retained are attributable to conditions existing or events occurring prior to the Closing or that are triggered by the Sellers pursuant to consummation of the transactions contemplated by this Agreement, including, without limitation, the Excluded Liabilities;
(iiic) Any obligations or liabilities with respect to the present or former employees, officers, directors, managers, partners or shareholders of Seller to the extent arising out of their employment of position with Seller, including claims under any Liability federal, state, local or other laws, statutes, rules, regulations, ordinances, codes, orders or authorizations, including worker's compensation claims, XXXXX claims, COBRA claims, age claims, civil rights laws claims, claims under the Fair Labor Standards Act, claims under the Labor Management Relations Act, employment discrimination claims of all types, sexual harassment claims, pension fund liability (whether for current or unfunded accrued liabilities), Americans With Disabilities Act claims and Occupational Safety and Health Act claims, and any obligations or liabilities with respect to the consultants of Seller to the extent arising out of their engagement with Seller;
(d) Any liability or obligation of each Seller arising under any Assumed Contract that is attributable to any violation, breach or failure to perform occurring prior to Closing, and any liability or obligation of the Sellers Seller arising under any Contract that is not assumed by Buyer;
(e) Any liability or Parentobligation of Seller, or any consolidated group of which the Sellers are Seller is a member, for any foreign, federal, state, commonwealth, county or local taxes Taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon;
(f) Any liability or obligation under COBRA or other applicable law with respect to employees of Seller (whether salary, hourly or otherwise) who are not employed by Xxxxx immediately upon Closing;
(g) Any liability or obligation of Seller arising under any commercial or other insurance policy, including, without limitationbut not limited to, any sales premiums, letters of credit or use tax obligations applicable to the transfer of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;payments for "run-off" coverage; or
(ivh) Any liability or obligation of Seller in respect of any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior to the Closing Date; and
(v) any Liabilities with respect to each of the Sellers' Benefit Plans (defined herein) and/or Benefit Arrangements (defined herein) arising on or prior to the Closing DateExcluded Asset.
Appears in 1 contract
Liabilities Not Assumed by Buyer. Anything in this Agreement to Except for the contrary notwithstandingAssumed Liabilities, each the Buyer is not assuming any debts, obligations or liabilities of the Sellers and Parent shall be responsible for all of their respective Liabilities and obligationswhatsoever, which includes all Liabilitieswhether known or unknown, related actual or contingent, matured or unmatured, currently existing or arising in any respect the future, including but not limited to the Business and/or liabilities set forth below, whether such liabilities have been disclosed on the Purchased Assets and/or any of the Sellers, but excluding solely the Assumed Liabilities Financial Statements or not (collectively, the "Excluded Liabilities"), and Buyer which shall not assume, or in any way be liable or responsible for, any of such Excluded Liabilities. Without limiting remain the generality of the foregoing, the Excluded Liabilities shall also include the following:
(i) any Liability or obligation of each sole responsibility of the Sellers (whether or Parent arising out not the Buyer is alleged to have liability as a successor to the Company):
(a) the fees and expenses of legal counsel, auditors, accountants, environmental consultants and environmental engineers retained or employed by the Sellers for services rendered in connection with the negotiation preparation, negotiation, execution, delivery and preparation performance of this Agreement and the transactions contemplated hereby;
(b) any liability of the Sellers for taxes (as hereinafter defined) which arise, are assessed or become payable or due as of or prior to the Closing Date or arise out of the consummation and performance of the transactions contemplated hereby, hereby or any Tax Liabilities so arising;
(ii) any Liability or obligation of each of the Sellers that is specifically retained become payable by the Sellers pursuant to this Agreementas a result of purchases, including, without limitation, the Excluded Liabilities;
(iii) any Liability or obligation of each of the Sellers or Parent, or any consolidated group of which the Sellers are a member, for any foreign, federal, state, commonwealth, county or local taxes of any kind or nature, or any taxes levied by any other legitimate taxing authority, or any interest or penalties thereon, including, without limitation, any sales or use tax obligations applicable to the transfer transfers as of the Purchased Assets or the transfer of the Contracts and/or Leases as contemplated by this Agreement, it being hereby agreed by the parties hereto that such obligations shall be paid by the Sellers and Parent, on a joint and several basis;
(iv) any Liabilities with respect to any claims, suits, actions or causes of action arising out of the operation of the Business on or prior to the Closing Date; and
, or other taxes of any kind or description except that (vi) any Liabilities Buyer shall have sole responsibility for current real estate and personal property taxes with respect to each the Acquired Assets to the extent such taxes relate to periods after the Closing Date, and (ii) Idaho state sales tax (under Title 63, Chapter 36 of the Sellers' Benefit Plans Idaho Code) incurred as result of the acquisition of the Operations, transfer of the Acquired Assets and the assumption of the Assumed Liabilities shall be shared equally by the Company and the Buyer;
(defined hereinc) and/or Benefit Arrangements any liability or obligation to third parties (defined hereincontingent or otherwise) of the Sellers related to periods prior to the Closing Date arising on out of any claim or litigation;
(d) any liability or obligation for Environmental Damages related to periods prior to the Closing Date.;
Appears in 1 contract
