No Assumption of Liabilities. Except for the Assumed Contracts, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume or be liable for any of the debts, obligations or liabilities of Seller of any kind or nature whatsoever including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability or obligation of Seller arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring on or prior to the Closing Date and relating to one or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this Agreement.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Republic Bancorp Inc /Ky/)
No Assumption of Liabilities. Except for It is expressly acknowledged and agreed that, except in respect of the Assumed Assigned Contracts, Seller Deposit LiabilitiesNMFS is assuming no obligations, and any other obligations debts or liabilities specifically assumed by Purchaser under this Agreementof Seller or Shareholders (and Seller and Shareholders shall jointly and severally indemnify NMFS against any and all suck debts, it is expressly understood obligations and agreed that Purchaser shall not assume or be liable for any of liabilities) including, without limitation, the following described debts, obligations or liabilities of Seller of liabilities:
(a) any kind or nature whatsoever includingliability, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability indebtedness or obligation of Seller or Shareholders for borrowed money, whether absolute or contingent, direct or indirect;
(b) liabilities and obligations of Seller or Shareholders,the existence of which constitute a breach of any of the representations or warranties made by Seller or Shareholders in this Agreement or in any document delivered by Seller or Shareholders pursuant to this Agreement;
(c) any liabilities or obligations arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "litigation, claim, investigation or proceeding (including, without limitation, losses, costs, expenses, attorneys' fees, and damages incurred in connection therewith) which relate to Seller or Shareholders or relate to services performed or products delivered prior to the Closing or which arise out of actions taken by, or omissions of, Seller or Shareholders prior to the Closing (whether or not scheduled on Exhibit 4.8);
(d) any federal, state, local or other income taxes payable by Seller or Shareholders or any interest or penalties with respect thereto;
(e) any liability under any employee benefit plan" or welfare plan or regarding any compensation or withholding taxes owed to or with respect to any employee or independent contractor of Seller or Shareholders;
(f) liabilities and obligations of Seller or Shareholders for payroll, wages, salaries, bonuses, vacation, sick pay and severance pay and other like amounts due as defined of the Closing Date to officers, directors, employees, contractors and agents of Seller or Shareholders, all of which amounts are listed in Section 3(3Exhibit 1.3(f) attached hereto;
(g) liabilities and obligations of ERISA which is maintained by Seller or Shareholders based upon tortuous or illegal conduct;
(h) liabilities and covers obligations of Seller or Shareholders for any employees at breach or violation, as of the Closing, of any contracts of Seller Officeor Shareholders including, any liability without limitation the Assigned Contracts;
(i) liabilities and obligations of Seller may have or Shareholders for environmental or ecological matters, including those relating to the use, transport, disposal, handling or storage of hazardous or toxic materials, pollutants, contaminants, petroleum products, or waste;
(j) liabilities and obligations of Seller or Shareholders incurred or will incur in connection with the transactions preparation of this Agreement and the consummation of transaction contemplated by this Agreementhereby, any liability arising out including, without limitation, legal and accounting fees; and
(k) trade payables and operating expenses of any action Seller incurred or inaction occurring on or accrued prior to the Closing Date Date. All of the foregoing items described in clauses (a) through (k) above are referred to herein collectively as the "Excluded Liabilities". In addition, Seller or Shareholders will immediately reimburse NMFS upon demand for any sales or similar tax (or any interest or penalties with respect thereto) which NMFS may be required to pay or become liable for as a result of the consummation of the transactions and relating the sale of the Assets contemplated hereby; provided, however, that such taxes to one be reimbursed by Seller or more Shareholder, as the case may be, shall not include any taxes levied by the State of Nevada. Notwithstanding the foregoing, NMFS will assume the obligations of Seller Deposit Accountsunder the "Assigned Contracts", including but not limited only to the lack of a taxpayer identification number for an account holder or extent that they represent obligations which are by their stated terms to be performed, in the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accountsordinary course, or any other liability Seller may have incurred prior subsequent to the Closing in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this AgreementDate.
Appears in 1 contract
Samples: Asset Purchase Agreement (National Medical Financial Services Corp)
No Assumption of Liabilities. Except for the Assumed Contracts, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser Buyer shall not assume or be liable for any of the debtsbound by, and Seller shall retain, pay and discharge when due, all liabilities or obligations or liabilities of Seller of any kind or nature nature, known or unknown, accrued, absolute, contingent or otherwise, whatsoever (all such liabilities and obligations of Seller referred to herein as the “Excluded Liabilities”), which Excluded Liabilities shall include, without limitation, any liabilities or obligations of Seller:
(a) incurred in connection with this Agreement and the transactions provided for herein, including, but not limited towithout limitation, any debt (except counsel, banking and accountant’s fees and expenses, and expenses pertaining to the extent the same has been credited performance by Seller of its obligations hereunder;
(b) relating to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability or obligation of Seller arising out of the Excluded Assets;
(c) in respect of Taxes of Seller and its Affiliates (whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller or its Affiliates in connection with this Agreement and the transactions provided for herein), including any threatened transfer Taxes, duties and other governmental charges applicable to the transfer of the Purchased Assets in connection with this Agreement;
(d) relating to past or pending litigationpresent employees or independent contractors of Seller, including, without limitation, any liability amounts in respect of compensation, severance, stay bonuses or paid time off; and
(e) in connection with respect or relating to personal injury or property damage any actions, suits, claims, any liability proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (whether or not arising out of claims third-party claims), including, without limitation, interest, penalties, attorneys’ and accountants’ fees and all amounts paid in investigation, defense or settlement of employees employed at any of the Seller Office for bonusesforegoing, salaries, sick leave, vacation, wages which liabilities or other payments obligations arise out of or benefits in respect relate to (i) the use or ownership of services performed at the Seller Office Purchased Assets or the operation of the Business prior to the ClosingClosing Date, (ii) any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained actions taken by Seller and covers or any employees at the member of Seller Office, or any liability Seller may have incurred of their respective related persons or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring Affiliates on or prior to the Closing Date and relating to one Date, or more Seller Deposit Accounts(iii) any continuing business or other activities of Seller, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accountsits members, or any other liability Seller may have incurred prior to of their respective related persons or Affiliates following the Closing in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this AgreementDate.
Appears in 1 contract
Samples: Asset Purchase Agreement (Grand Canyon Education, Inc.)
No Assumption of Liabilities. Except for The parties acknowledge and agree that the Assumed Contracts, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser Company shall not assume or be liable for any of the debtsPixorial’s liabilities or obligations, obligations whether accrued, absolute, contingent or liabilities of Seller of any kind or nature whatsoever otherwise including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practiceswithout limitation, any liability or obligation of Seller arising out of any threatened or pending litigation, any liability with respect to personal (collectively, the “Pixorial’s Obligations”), including the following:
(a) any product liability or similar claim for injury to persons or property damage claimsproperty, any liability arising regardless of when made or asserted, which arises out of claims or is based upon any express or implied representation, warranty or agreement made by the Pixorial or its agents, or which is imposed by operation of employees employed at the Seller Office for bonuseslaw or otherwise, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) sales or service performed by or on behalf of ERISA which is maintained by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring Pixorial on or prior to the Closing Date and relating Date;
(b) any liability or obligations to one any current or more Seller Deposit Accountsformer employees, including but not limited to agents, independent contractors or creditors of the lack of a taxpayer identification number for an account holder Pixorial (other than those set forth above under Assumed Liabilities) or the lack of compliance with under any federal plan or state law or regulation arrangement with respect thereto, including, without limitation, liabilities and obligations (A) under any life, health, accident, disability or any other employee benefit plan, and (B) under any pension, profit sharing, stock bonus, deferred compensation, retirement, bonus or other current or former employee compensation or pension benefit plan or post-retirement benefit plan to one which the Pixorial is a party or more Seller Deposit Accountsunder which the Pixorial has any obligation, or which is maintained, or to which contributions have been made, by the Pixorial or any predecessor or any corporation which is a controlled group or corporations of which the Pixorial are a member, or any trade or business (whether or not incorporated) under common control with the Pixorial, and (C) for wages, salaries, bonuses, commissions, severance, sick pay, vacation or holiday pay, overtime or other liability Seller may have incurred benefits;
(c) any liabilities for any tax, assessment or other governmental imposition of any type or description, including, without limitation, any federal income or excess profits taxes or state or federal income, sales, use, excise, ad valorem or franchise taxes, together with any interest, assessments and penalties thereon arising out of or attributable to the conduct of the Pixorial’s operations and the Business prior to the Closing Date or the Pixorial’s or its shareholders’ federal income or capital gain taxes or state, or local income or franchise taxes arising by virtue of the transactions contemplated by this Agreement or otherwise;
(d) any liability (i) which arises out of or in connection with any breach or default by the operation Pixorial occurring prior to the Closing under any of the Seller Office Contracts, (ii) which arises out of or in connection with any violation by the Pixorial of any requirement of law prior to the Closing Date, (iii) which relates to the Assets (including those arising under the Contracts) to the extent relating to periods prior to the Closing Date;
(e) any liability arising out of or in connection with litigation or other legal proceedings, claims or investigations related to the Pixorial or the Business and operations, regardless of when made or asserted, including, without limitation, contract, tort, intellectual property, infringement or misappropriation, crime, fraudulent conveyance, workers’ compensation, product liability or similar claim for injury to persons or property which has not been credited arises out of or is based upon any express or implied warranty, representation or agreement of the Pixorial or its employees or agents, or which is imposed by law or otherwise; and
(f) any trade payables or other costs of operating the Business prior to Purchaser through proration or specifically assumed by Purchaser under this Agreementthe Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lifelogger Technologies Corp)
No Assumption of Liabilities. Except for All parties hereto acknowledge and ---------------------------- agree that neither Prime nor any affiliate of Prime shall, by virtue of entering into and performing this Agreement or by virtue of the Assumed Contractsconsummation of the transactions contemplated hereby, Seller Deposit Liabilitiesassume any liabilities or obligations of any kind whatsoever from any Partners, and any other obligations NGST, or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume or be liable for any of the debtsShareholders. Furthermore, neither Prime nor any affiliate of Prime shall, by virtue of entering into and performing this Agreement or by virtue of the consummation of the transactions contemplated hereby, assume any liabilities or obligations or liabilities of Seller of any kind whatsoever from, or nature whatsoever relating to, the Partnership to the extent such liabilities or obligations are existing on the Closing Date, or arise out of events or omissions occurring prior to the Closing Date. Without limiting the generality of the foregoing, the parties hereto expressly acknowledge and agree that Prime is not assuming any debts, liabilities, or obligations of the Partnership, any Partners, NGST or any of the Shareholders, or any claims against the Partnership, any Partners, NGST or any of the Shareholders, whether known or unknown, or absolute, contingent or otherwise (including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank sharesfederal, franchise or related taxstate, and local taxes, any liability for unfair labor practicessales taxes, any liability or obligation of Seller taxes arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur in connection with from the transactions contemplated by this AgreementAgreement and any liabilities arising from any civil, criminal or regulatory litigation or action involving or related to the Partnership, any liability arising out Partners, NGST or any of the Shareholders or their businesses), and the Partnership, NGST and the Shareholders each hereby agree (severally and not jointly) to indemnify Prime and hold Prime harmless from and against any action or inaction occurring on or prior such debts, liabilities and obligations; provided, however, that with regard to the Partnership only, the foregoing shall not be construed to preclude Prime's liability, in its role as a general partner of the Partnership after the Closing Date and relating to one or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one claims, debts, liabilities or more Seller Deposit Accountsobligations that arise wholly out of actions, events or any other liability Seller may have incurred prior to omissions occurring after the Closing in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this AgreementDate.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Prime Medical Services Inc /Tx/)
No Assumption of Liabilities. Except as expressly provided for the Assumed Contractsin Section 1.3, Seller Deposit LiabilitiesPurchaser has not and will not assume from Teledrift any Liability. Specifically, and any other obligations or liabilities specifically assumed but not by Purchaser under this Agreementway of limitation, it is expressly understood and agreed that Purchaser shall not assume or be liable the following Liabilities of Teledrift:
(a) any Liability for income Taxes;
(b) any Liability for Taxes (other than income Taxes) arising with respect to conduct of the Business through the Effective Time;
(c) any Liability to indemnify any Person (including any of the debtsStockholders) by reason of the fact that such Person was, obligations a director, officer, employee, or liabilities of Seller agent of any kind entity or nature whatsoever includingwas serving at the request of any such entity as a partner, but not limited totrustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any debt statute, charter document, bylaw, agreement or otherwise);
(except d) any Liability for costs and expenses incurred by Teledrift or any Stockholder in connection with this Agreement and the Transactions;
(e) any Liability of Teledrift under this Agreement (or under any agreement between Teledrift on the one hand and Purchaser on the other hand entered into on or after the date of this Agreement);
(f) any Liability for Funded Debt;
(g) any Liability arising prior to the extent Effective Time, or as a result of the same has been credited Closing, to any employee, agent, or independent contractor of Teledrift, whether or not employed by Purchaser after the Effective Time, or under any benefit arrangement maintained by proration at Closingor for the benefit of Teledrift with respect thereto;
(h) or tax including any bank sharesLiability for wages, franchise or related taxcommissions, vacation, holiday, workers’ compensation and sick pay obligations with respect to employees of Teledrift, accrued through the Effective Time and all bonuses and fringe benefits as to such employees accrued through the Effective Time, and all severance pay obligations to such employees, if any, resulting from the consummation of the transactions contemplated by the Agreement; and
(i) any liability for unfair labor practices, any liability or obligation of Seller Liability arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is plan maintained by Seller and covers any or covering employees at the Seller Office, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring on or prior to the Closing Date and relating to one or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit AccountsTeledrift, or to which Teledrift has made any other liability Seller may have incurred prior contribution or to the Closing in connection with the operation of the Seller Office and which has not been credited Teledrift could be subject to Purchaser through proration or specifically assumed by Purchaser under this Agreementany Liability.
Appears in 1 contract
Samples: Asset Purchase Agreement (Flotek Industries Inc/Cn/)
No Assumption of Liabilities. Except for Other than the Assumed Contracts, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any of the debtsobligation for or with respect to, any liabilities, obligations or liabilities commitments of Seller the Company, the Principal Shareholders or other Shareholders of any kind, nature or description. All obligations, liabilities and commitments of the Company, the Principal Shareholders or other Shareholders, other than the Assumed Liabilities are referred to herein as the “Excluded Liabilities.” Without limitation of the foregoing, the term “Excluded Liabilities” includes the following liabilities, whether accrued or fixed, absolute or contingent, known or unknown, determined or determinable, and, unless otherwise expressly provided herein, whenever arising:
(a) all liabilities and obligations relating to or arising out of the Excluded Assets;
(b) any and all liabilities or obligations of the Company in respect of (i) any Taxes attributable to the Company, the Principal Shareholders or other Shareholders (ii) any Taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by the Company or any Shareholder, affiliate, director, employee or officer of the Company as a result of the execution of this Agreement or the consummation of the Transactions, except as provided with respect to Transfer Fees in Section 7.8 of this Agreement;
(c) any claims, demands, liabilities or obligations of any nature whatsoever including(including claims, but not limited todemands, liabilities or obligations in respect of environmental matters, occupational safety, workers’ compensation, grievance proceedings or actual or threatened litigation, suits, claims, demands or governmental proceedings) which arose or were incurred on or before the Closing Date, or which arise from or are based on events occurring or conditions existing on or before the Closing Date;
(d) any debt (except liabilities or obligations that arise from or are based on events occurring or conditions existing before the Closing Date with respect to the extent employees and former employees of the same has been credited to Purchaser by proration at Closing) or tax Company, including any bank sharesliability or obligation arising under any labor or employment contract, franchise agreement or related tax, other arrangement (including any liability for unfair labor practicesbonuses payable to such employees whether earned or unearned and any accrued but unpaid vacation and sick leave of such employees), any liability or obligation arising under any plan or other compensation arrangement of Seller arising out of the Company, including any threatened or pending litigation, obligations under any liability plan with respect to personal injury persons who are not employees or former employees of the Company, including spouses and dependents;
(e) any environmental liability or obligation relating to any presence or Release into the environment of a Hazardous Material (as such term is hereinafter defined), or to any condition, known or unknown, existing or occurring, at or on any real property damage claimsor premises (1) owned, any liability arising out of claims of employees employed at leased, or occupied by the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring Company on or prior to the Closing Date and relating to one or more Seller Deposit Accounts, including but not limited to the lack (regardless of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accountswhen first discovered), or any other liability Seller may have incurred (2) to which Hazardous Material has been sent or arranged for shipment by the Company on or prior to the Closing Date (regardless of when first discovered) (hereafter an “Environmental Condition”), including without limitation (x) any suits, causes of action, proceedings, judgments, administrative and judicial orders arising out of any matter relating to such Environmental Condition, (y) any civil liability or liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required cleanup or full or partial remediation, investigation or monitoring of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined);
(f) any liability or obligation to present or former shareholders of the Company;
(g) all liabilities and obligations of the Company under this Agreement, the Transaction Documents;
(h) any obligations, liabilities or commitments under the Assigned Contracts to the extent such obligations, liabilities and commitments arise from a breach thereof or default thereunder during the period prior to the Closing Date;
(i) any liability or obligation to third parties and claims from third parties to the extent based on circumstances existing on or prior to the Closing Date or the conduct of the Company to the extent such conduct occurred on or before the Closing Date;
(j) all other obligations and liabilities arising from the operation of the Company, the Business or the ownership of the Purchased Assets on or prior to the Closing Date;
(k) any liabilities of the Shareholders not related to the Company or the Purchased Assets;
(l) all recorded and unrecorded accounts payable of the Company or the Shareholders of any kind, whether or not relating to the Business, to the extent such are not included in the Final Financial Statements;
(m) subject to Section 7.11, any obligations or liabilities of the Company under any warranty or service agreement granted or entered into in connection with the operation sale of products prior to the Closing Date; and
(n) each Employee Benefit Program of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this AgreementCompany.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azz Inc)
No Assumption of Liabilities. Except for The parties acknowledge and agree that the Assumed Contracts, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser Company shall not assume or be liable for any of the debtsPixorial’s liabilities or obligations, obligations whether accrued, absolute, contingent or liabilities of Seller of any kind or nature whatsoever otherwise including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practiceswithout limitation, any liability or obligation of Seller arising out of any threatened or pending litigation, any liability with respect to personal (collectively, “Pixorial’s Obligations”), including the following:
(a) any product liability or similar claim for injury to persons or property damage claimsproperty, any liability arising regardless of when made or asserted, which arises out of claims or is based upon any express or implied representation, warranty or agreement made by the Pixorial or its agents, or which is imposed by operation of employees employed at the Seller Office for bonuseslaw or otherwise, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) sales or service performed by or on behalf of ERISA which is maintained by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring Pixorial on or prior to the Closing Date and relating Date;
(b) any liability or obligations to one any current or more Seller Deposit Accountsformer employees, including but not limited to agents, independent contractors or creditors of the lack of a taxpayer identification number for an account holder Pixorial (other than those set forth above under Assumed Liabilities) or the lack of compliance with under any federal plan or state law or regulation arrangement with respect thereto, including, without limitation, liabilities and obligations (A) under any life, health, accident, disability or any other employee benefit plan, and (B) under any pension, profit sharing, stock bonus, deferred compensation, retirement, bonus or other current or former employee compensation or pension benefit plan or post-retirement benefit plan to one which the Pixorial is a party or more Seller Deposit Accountsunder which the Pixorial has any obligation, or which is maintained, or to which contributions have been made, by the Pixorial or any predecessor or any corporation which is a controlled group or corporations of which the Pixorial are a member, or any trade or business (whether or not incorporated) under common control with the Pixorial, and (C) for wages, salaries, bonuses, commissions, severance, sick pay, vacation or holiday pay, overtime or other liability Seller may have incurred benefits;
(c) any liabilities for any tax, assessment or other governmental imposition of any type or description, including, without limitation, any federal income or excess profits taxes or state or federal income, sales, use, excise, ad valorem or franchise taxes, together with any interest, assessments and penalties thereon arising out of or attributable to the conduct of the Pixorial’s operations and the Business prior to the Closing Date or the Pixorial’s or its shareholders’ federal income or capital gain taxes or state, or local income or franchise taxes arising by virtue of the transactions contemplated by this Agreement or otherwise;
(d) any liability (i) which arises out of or in connection with any breach or default by the operation Pixorial occurring prior to the Closing under any of the Seller Office Contracts, (ii) which arises out of or in connection with any violation by the Pixorial of any requirement of law prior to the Closing Date, (iii) which relates to the Assets (including those arising under the Contracts) to the extent relating to periods prior to the Closing Date;
(e) any liability arising out of or in connection with litigation or other legal proceedings, claims or investigations related to the Pixorial or the Business and operations, regardless of when made or asserted, including, without limitation, contract, tort, intellectual property, infringement or misappropriation, crime, fraudulent conveyance, workers’ compensation, product liability or similar claim for injury to persons or property which has not been credited arises out of or is based upon any express or implied warranty, representation or agreement of the Pixorial or its employees or agents, or which is imposed by law or otherwise; and
(f) any trade payables or other costs of operating the Business prior to Purchaser through proration or specifically assumed by Purchaser under this Agreementthe Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lifelogger Technologies Corp)
No Assumption of Liabilities. Except for It is expressly acknowledged and agreed that, except in respect of the Assumed ContractsAssigned Contracts and as otherwise set forth herein, Seller Deposit LiabilitiesNMFS is assuming no obligations, and any other obligations debts or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume or be liable for any of the Accounting Business or of Seller incurred prior to the Closing Date, including, without limitation, the following described debts, obligations or liabilities of Seller of any kind or nature whatsoever including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closingthey may exist:
(a) or tax including any bank sharesliability, franchise or related tax, any liability for unfair labor practices, any liability indebtedness or obligation of the Accounting Business or of Seller for borrowed money, whether absolute or contingent, direct or indirect;
(b) liabilities and obligations of the Accounting Business or of Seller, the existence of which constitute a material breach of any of the representations or warranties made by Seller in Section 4 of this Agreement;
(c) any liabilities or obligations arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained by Seller litigation, claim, investigation or proceeding (including, without limitation, losses, costs, expenses, attorneys' fees, and covers any employees at the Seller Office, any liability Seller may have damages incurred or will incur in connection with therewith) which relate to the transactions contemplated by this Agreement, any liability arising out of any action Accounting Business or inaction occurring on to Seller or relate to services performed or products delivered prior to the Closing Date and relating to one or more which arise out of actions taken by, or omissions of, the Accounting Business or Seller Deposit Accounts, including but not limited prior to the lack of a taxpayer identification number for an account holder Closing (whether or not scheduled on Exhibit 4.8);
(d) any federal, state, local or other income taxes payable by the lack of compliance Accounting Business or by Seller or any interest or penalties with respect thereto;
(e) any federal liability under any employee benefit or state law welfare plan or regulation regarding any compensation or withholding taxes owed to or with respect to one any employee or more independent contractor of the Accounting Business or of Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing in connection with the operation Date;
(f) liabilities and obligations of the Accounting Business or of Seller Office for payroll, wages, salaries, bonuses, vacation, sick pay and severance pay and other like amounts due as of the Closing Date to officers, directors, employees, contractors and agents of Seller, all of which has not been credited amounts are listed in Exhibit 1.3(f) attached hereto;
(g) liabilities and obligations of the Accounting Business or of Seller based upon tortious or illegal conduct prior to Purchaser through proration Closing;
(h) liabilities and obligations of the Accounting Business or specifically assumed by Purchaser under this Agreement.of Seller for any breach or violation, as of the Closing, of any contracts of the Accounting Business or of Seller with third parties, including, without limitation, the Assigned Contracts;
Appears in 1 contract
Samples: Accounting Business Asset Purchase Agreement (National Medical Financial Services Corp)
No Assumption of Liabilities. No Encumbrances on Assets. Except for the Assumed Contracts and the Executory Station Contracts, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under as otherwise expressly provided for in this Agreement, it Purchaser is expressly understood not assuming any liabilities or obligations whatsoever of Debtors, whether absolute, accrued, liquidated, known or unknown, matured or unmatured, contingent or otherwise and agreed that Purchaser shall whether due or arising before the Closing or arising or to become due on or after Closing and whether or not assume or be liable for any of the debts, obligations or liabilities of Seller of any kind or nature whatsoever including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability or obligation of Seller arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed asserted at the Seller Office for bonusestime of Closing (including commissions, salaries, sick leavewages, vacationrebates to customers, wages fees, medical or other payments liabilities or benefits in respect compensation to employees, rents, mortgages, expenses, accounts payable, liabilities arising under the Internal Revenue Code of services performed at the Seller Office prior to the Closing1986, as amended, or under any liability under state or in connection with local tax law, for any "employee benefit plan" as defined in Section 3(3) of ERISA tax which is maintained by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring become due for periods on or prior to the Closing Date and relating for all interest and penalties thereon, any liability for any obligations heretofore or hereafter incurred by Debtors for any contributions to one any employment benefit plans, pension programs and other such benefit programs or more Seller Deposit Accountsarrangements), including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing in connection with the operation and none of the Seller Office Assets shall be acquired subject to any such liens, liabilities or encumbrances (collectively, the "Liabilities or Encumbrances"). At the Closing, subject to Section 3.2(b) and which has Section 6.2, Debtors shall, pursuant to Section 363(f) of the Bankruptcy Code, sell, convey and assign, transfer and deliver, and Purchaser shall purchase and assume, all of Debtors' rights, title and interest in and to all of the Assets, free and clear of all Liabilities or Encumbrances, whether absolute, accrued, contingent or otherwise and whether due or to become due and whether or not been credited to Purchaser through proration or specifically assumed by Purchaser under this Agreementasserted at the time of Closing.
Appears in 1 contract
No Assumption of Liabilities. Except for It is expressly acknowledged and ---------------------------- agreed that, except in respect of the Assumed Assigned Contracts, Seller Deposit LiabilitiesPurchaser is assuming no obligations, and any other obligations debts or liabilities specifically assumed by of Seller or Shareholder (and Seller and Shareholder shall jointly and severally indemnify Purchaser under this Agreementagainst any and all such debts, it is expressly understood obligations and agreed that Purchaser shall not assume or be liable for any of liabilities) including, without limitation, the following described debts, obligations or liabilities of Seller of liabilities:
(a) any kind or nature whatsoever includingliability, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability indebtedness or obligation of Seller or Shareholder for borrowed money, whether absolute or contingent, direct or indirect;
(b) liabilities and obligations of Seller or Shareholder, the existence of which constitute a breach of any of the representations or warranties made by Seller or Shareholder in this Agreement or in any document delivered by Seller or Shareholder pursuant to this Agreement;
(c) any liabilities or obligations arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "litigation, claim, investigation or proceeding (including, without limitation, losses, costs, expenses, attorneys' fees, and damages incurred in connection therewith) which relate to Seller or Shareholder or relate to services performed or products delivered prior to the Closing or which arise out of actions taken by, or omissions of, Seller or Shareholder prior to the Closing (whether or not scheduled on Exhibit 4.8);
(d) any federal, state, local or other income taxes payable by Seller or Shareholder or any interest or penalties with respect thereto;
(e) any liability under any employee benefit plan" or welfare plan or regarding any compensation or withholding taxes owed to or with respect to any employee or independent contractor of Seller or Shareholder;
(f) liabilities and obligations of Seller or Shareholder for payroll, wages, salaries, bonuses, vacation, sick pay and severance pay and other like amounts due as defined of the Closing Date to officers, directors, employees, contractors and agents of Seller or Shareholder, all of which amounts are listed in Section 3(3Exhibit 1.3(f) attached hereto;
(g) liabilities and obligations of ERISA which is maintained by Seller or Shareholder based upon tortious or illegal conduct;
(h) liabilities and covers obligations of Seller or Shareholder for any employees at breach or violation, as of the Closing, of any contracts of Seller Officeor Shareholder including, without limitation, the Assigned Contracts;
(i) liabilities and obligations of Seller or Shareholder for environmental or ecological matters, including those relating to the use, transport, disposal, handling or storage of hazardous or toxic materials, pollutants, contaminants, petroleum products, or waste;
(j) any liability or obligation to Medicare, Medicaid, Blue Cross/Blue Shield (or any other third party payor) as a result of recapture of amounts paid by any such payor to Seller may have or Shareholder or any overpayments made by such payor to Seller or Shareholder or any disallowance of any claim of Seller or Shareholder;
(k) liabilities and obligations of Seller or Shareholder incurred or will incur in connection with the transactions preparation of this Agreement and the consummation of transaction contemplated by this Agreementhereby, any liability arising out including, without limitation, legal and accounting fees; and
(l) trade payables and operating expenses of any action or inaction occurring on or prior to the Closing Date and relating to one or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing in connection with the operation Date. All of the foregoing items described in clauses (a) through (l) above are referred to herein collectively as the "Excluded Liabilities". Notwithstanding the foregoing, Purchaser will assume the obligations of Seller Office and under the "Assigned Contracts", but only to the extent that they represent obligations which has not been credited are by their stated terms to Purchaser through proration or specifically assumed by Purchaser under this Agreementbe performed, in the ordinary course, subsequent to the Closing Date.
Appears in 1 contract
No Assumption of Liabilities. Except for as provided in Section 1.2.1 hereof, the Assumed ContractsBuyer assumes no liabilities or other obligations, Seller Deposit Liabilitiescommercial or otherwise, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume or be liable for any of the debtsSeller, known or unknown, fixed or contingent, xxxxxx or inchoate, liquidated or unliquidated, secured or unsecured or otherwise (such liabilities and obligations or liabilities of Seller of any kind or nature whatsoever includingare hereinafter referred to collectively as the "Excluded Liabilities" and individually as an "Excluded Liability"). The Excluded Liabilities include, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practiceswithout limitation, any liability or obligation of Seller to any person with respect to the following:
(i) trade accounts payable;
(ii) services performed or products sold or licensed by Seller prior to the Closing Date, or claims asserted by customers of the Business relating to or arising out of any threatened services performed or pending litigationproducts sold or licensed by Seller prior to the Closing Date, any liability with respect to whether warranty claims, claims for personal injury or property damage damage, claims seeking indemnification or any other claims, whether asserted before or after the Closing Date, and regardless of the nature of damages or other relief sought (including but not limited to direct, indirect, special, consequential and punitive damages and injunctive relief);
(iii) Seller’s failure to perform its obligations under any liability Assumed Contract, to the extent performance is due prior to the Closing Date;
(iv) Seller’s breach of or default under any Assumed Contract, occurring prior to the Closing Date, or any breach of, or non-compliance with, any warranties, assurances or guarantees of performance or functionality given to customers under the Assumed Contracts, occurring, having its genesis or first arising prior to the Closing Date, whether the claim thereof is asserted before or after the Closing Date;
(v) the transfer of the Acquired Assets pursuant hereto including transfer taxes and stamp taxes to the extent that the same are assessable by law against the Seller;
(vi) any federal, state, local or foreign taxes, fees, assessments or other similar charges (including, without limitation, income taxes, corporate taxes, franchise taxes, real estate taxes, payroll taxes, personal property taxes and sales and use taxes);
(vii) defects, returns or allowances, losses, personal injury, property damage, consequential damages or other damages of any kind whatsoever, whether suffered or incurred by the Seller's customer or Buyer's customer or any other person, arising out of claims of employees employed at services performed or products sold or licensed by the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring on or prior to the Closing Date Date, whether the occurrence giving rise to such liability occurs before or after the Closing, whether the claim is asserted before or after the Closing;
(viii) salary, wages, sick pay, vacation pay, severance pay, savings plans, deferred compensation, the Seller's pension, profit-sharing, retirement, and relating to one or more Seller Deposit Accountsother fringe benefit plans, including but not limited to any employee pension benefit plan and any other obligations for the lack benefit of, or liabilities to, any employees of a taxpayer identification number for an account holder the Seller, including but not limited to accrued pension benefits (vested or unvested), arising out of their employment with Seller or the lack termination of compliance their employment with Seller before, upon or after the consummation of the transactions contemplated hereby;
(ix) the environmental condition of any federal fee simple, leasehold or state law other interest in land, or regulation buildings and improvements thereon, at which Seller conducts or has conducted business (all such land, together with respect the buildings and improvements thereon, is hereinafter referred to one as the “Real Property”) as it exists on the Closing Date or more the clean-up thereof, including, without limitation, the clean-up of any hazardous materials either on the Real Property or originating on the Real Property.
(x) the failure to comply with the requirements of all laws applicable to the Seller Deposit Accountsor the conduct of the Business prior to the Closing Date;
(xi) indebtedness for borrowed money or intercompany transactions or indebtedness to Seller's shareholders and affiliates;
(xii) occurrences on the Real Property occurring prior to or after the Closing Date;
(xiii) Seller's employee health and dental plans, or any other liability employee welfare benefit plan maintained by Seller, arising out of or relating to, medical or dental services provided or rendered to the Seller's employees on or before the Closing Date;
(xiv) the repair or replacement of defective products manufactured or sold by Seller may have incurred on or prior to the Closing Date; and
(xv) any obligation or liability of the Seller is respect of or in connection with any Grants (as defined in Section 4.20(a) below). The Seller shall have any and all responsibility to all creditors and all third parties and to the operation Buyer with respect to, and shall pay, discharge and perform when due, all liabilities and obligations of the Seller Office and which has not been credited to Purchaser through proration or specifically expressly assumed by Purchaser under this Agreementthe Buyer and, without limiting the generality of Section 12.1 hereof, shall indemnify and hold the Buyer harmless from and against any and all damages, liabilities, losses and expenses arising from such liabilities and obligations.
Appears in 1 contract
Samples: Asset Purchase Agreement (Inksure Technologies Inc.)
No Assumption of Liabilities. Except for (a) liabilities arising ---------------------------- after the Closing Date under the Assumed ContractsAgreements, the Franchise Agreements and the Development Agreements; (b) obligations of Seller Deposit Liabilitiesarising prior to the date hereof solely with respect to providing Franchisees (who are not in default) with site selection assistance and training (to the extent required by provisions of Franchise Agreements substantially similar to those set forth in Sections 3 and 6 of the form Franchise Agreement, designated 03060001.ST8 (RO:122696) and attached hereto as Exhibit "F-1") in consideration for prepaid ------------- franchise fees; and (c) the Coupon Obligation (as defined, and any other obligations or liabilities specifically assumed by to the extent provided, in Paragraph 7.e. hereof), Purchaser under this Agreementdoes not, it is expressly understood and agreed that Purchaser shall not be deemed to, assume any existing or be liable future liabilities, debts, obligations, accounts payable, lease obligations, contracts, warranties, or agreements of Seller that arise from, relate to, or are based on occurrences, facts or circumstances prior to Closing, regardless how such obligations may have arisen and regardless of disclosure of such liabilities hereunder (hereinafter collectively referred to as the "Retained Liabilities"), including without limitation (i) all obligations for any taxes (including taxes which are not due as of the debtsClosing but are attributable to any period prior to the Closing), obligations or liabilities (ii) indebtedness of Seller of for borrowed money, (iii) liabilities in connection with any kind or nature whatsoever litigation (including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability or obligation all claims of Seller Franchisees arising out of any threatened circumstances existing prior to the Closing or pending litigationarising out of the operation of the National Advertising Fund, any as hereinafter described), (iv) liabilities for workers compensation, product liability, environmental claims, tort liability with respect to or general liability, personal injury or property damage claimsdamage; (v) liabilities regarding independent contractors or employees of Seller, any liability arising out of claims of employees employed at the Seller Office including, without limitation, liabilities for vacation pay, sick pay, severance pay, profit-sharing or pension plans, bonuses, salaries, sick leave, vacation, wages or any other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit planor "fringe benefit" as defined in Section 3(3arrangement; and (vi) liabilities under any contracts or agreements of ERISA which is maintained by Seller and covers any employees at that are not Assumed Agreements. Seller shall, contemporaneously with the Seller Office, any liability Seller may have incurred or will incur in connection with consummation of the transactions contemplated by this Agreement, any liability arising out of any action absolutely and unconditionally pay, or inaction occurring on reserve for and pay when due, in full (or otherwise satisfy), all Retained Liabilities (both current and contingent) and shall pay in full, and cause to be released or satisfied prior to the Closing Date Closing, all liens and relating to one or more Seller Deposit Accounts, including but not limited to encumbrances on the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this AgreementPurchased Assets.
Appears in 1 contract
No Assumption of Liabilities. Except for the Assumed Contracts, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume or be liable for deemed to have assumed any of the debts, liabilities or obligations or liabilities of Seller of any kind kind, whether created, arising or nature whatsoever existing before, on or after the Closing Date (together, the “Unassumed Liabilities”), including, but not limited to, without limitation:
(a) any debt (except to the extent the same has been credited to Purchaser by proration at Closing) obligation or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability or obligation of Seller arising out of any threatened or pending litigation, any liability with respect to personal injury the business and affairs of Seller and the acts and omissions of its current or property damage claimsformer stockholders, officers, directors, employees and agents;
(b) any obligation or liability arising out of claims the operations of Seller, including, without limitation, (i) any product liability or service or warranty obligations of Seller relating to any products sold by Seller before, (ii) any rebates, discounts, offsets or concessions relating to any amounts invoiced to any of Seller’s customers, (iii) any obligation or liability to any of Seller’s employees employed at the Seller Office for bonusessalary, salarieswages, sick leave, vacation, wages bonuses or other payments compensation or benefits in respect of services performed at the Seller Office prior to the Closingbenefits, including, without limitation, any liability arising under or in connection with any "employee benefit plan" as defined in Section 3(3plan of any kind, (iv) any liabilities of Seller with respect to any such benefit plan and (v) any liability arising from any violation of any law, rule or regulation;
(c) any obligation or liability for federal, state, local or foreign income or other taxes (including any related penalties, fines and interest) of ERISA which is maintained by Seller and covers any employees at the Seller OfficeSeller, including, without limitation, any liability Seller may have incurred or will incur in connection with and all taxes arising out of the transactions contemplated by this Agreement, ;
(d) any liability arising out of of, and any action expenses relating to, any claim, action, dispute or inaction occurring on or prior litigation to the Closing Date and relating extent involving Seller;
(e) any liability of Seller for fines, penalties, damages or other amounts payable to one any government or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder governmental agency or the lack of compliance instrumentality;
(f) any obligation or liability that is inconsistent with any federal representation or state law warranty set forth in Section 7; and
(g) any obligation or regulation with respect liability of Seller for any expenses incurred in preparing or negotiating this Agreement and consummating the transactions contemplated hereunder. Seller shall discharge and indemnify, defend and hold harmless Purchaser and its officers, directors, employees, agents and stockholders from all Unassumed Liabilities, whether or not now known, liquidated or contingent, including, without limitation, any that might be deemed to one or more Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this Agreementby virtue of its purchase of the Acquired Assets or otherwise by operation of law.
Appears in 1 contract
No Assumption of Liabilities. Except for the Assumed Contractsliabilities expressly set forth on Schedule 1.3 hereto, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser Buyer shall not assume and shall have no liability for, any liabilities or be liable for any obligations of the debtsSeller (or any predecessor of the Seller, obligations including, without limitations Anserve, Inc., a Louisiana corporation ("Anserve")), known or liabilities unknown, fixed or contingent ("Liabilities") including, without limitation, the following:
(a) any liability in respect of Seller accounts payable;
(b) any liability in respect of any kind indebtedness whether or nature whatsoever including, but not limited to, any debt secured by the Transferred Assets;
(except c) subject to the extent the same has been credited to Purchaser by proration at ClosingSection 1.10(b) or tax including any bank shares, franchise or related taxhereof, any liability for unfair labor practicesany Federal, state, local or foreign income, capital gains, franchise taxes, taxes on capital, sales and use tax, or employee withholding taxes (including, without limitation, any deferred income tax liability and any penalties and interest thereon);
(d) any liability for expenses incurred by, or for claims made against, the Seller in connection with or resulting from or attributable to this Agreement or the transactions contemplated hereby, if any;
(e) any liability for any investment banking, brokerage or similar charge or commission, or any attorneys' or accountants' fees and expenses, payable or incurred by the Seller in connection with the preparation, negotiation, execution or delivery of this Agreement or the transactions contemplated hereby;
(f) any liability of the Seller to Buyer arising out of any misrepresentation or breach of any warranty of the Seller contained in this Agreement or any of the schedules or exhibits hereto or in any certificate, agreement, instrument or other document delivered pursuant hereto or out of the failure of the Seller to perform any of their agreements or covenants contained herein or therein or to perform or satisfy any of the Liabilities;
(g) any liability or obligation of Seller arising out of any threatened or pending litigationto employees including, any liability with respect to personal injury or property damage claimswithout limitation, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits liabilities and obligations in respect of services performed at the Seller Office prior to the Closingcompensation and severance (including, any liability under or in connection with any "employee benefit plan" without limitation, severance obligations arising as defined in Section 3(3) a result of ERISA which is maintained by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, hereby) and any liability or obligation under any employee pension, benefit or other plan; and
(h) any other liability arising out from or relating to the operation of any action the Business (whether by the Seller or inaction occurring Anserve) on or prior to the Closing Effective Date and relating to one or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing extent not otherwise specifically set forth in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this AgreementSection 1.
Appears in 1 contract
Samples: Asset Purchase Agreement (Protocol Communications Inc)
No Assumption of Liabilities. Except for the Assumed Contracts, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume or be liable for any of the debts, obligations or liabilities of Seller of any kind or nature whatsoever including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closing) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability or obligation of Seller arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability related to Seller's safe deposit business, any liability arising out of claims of employees employed at the Seller Office Offices for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office Offices prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained by Seller and covers any employees at the Seller OfficeOffices, any liability Seller may have incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring on or prior to the Closing Date and relating to one or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing in connection with the operation of the Seller Office Offices and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this Agreement.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Republic Bancorp Inc /Ky/)
No Assumption of Liabilities. Except for the Assumed Contractsas set forth in Section 2.1 above, Seller Deposit Liabilities, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser Buyer shall not assume any liabilities and obligations of Seller, known or be liable for any of unknown, liquidated or unliquidated, accrued or unaccrued, due or to become due, absolute, contingent or fixed (the debts“Seller’s Liabilities”), obligations or liabilities of Seller of any kind or nature whatsoever including, but not limited to, Buyer shall not assume the following Seller Liabilities (the “Excluded Liabilities”):
(a) Any Seller Liabilities to or in respect of any debt (except to the extent the same has been credited to Purchaser by proration at Closing) temporary or tax including any bank shares, franchise permanent employees or related tax, any liability for unfair labor practices, any liability or obligation former employees of Seller arising out of for any threatened period (collectively, the “Employee Liabilities”), including, without limitation: (A) any Seller Liability under or pending litigation, any liability with respect to personal injury any Employee Benefit Plan, whether or property damage claimsnot written, at any liability arising out of claims of employees employed at the Seller Office for bonusestime maintained, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior contributed to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained by Seller and covers any employees at the Seller Office, any liability or under which Seller may have incurred incur Seller Liability, or will incur in connection any Seller Liability with the transactions contemplated by this Agreement, any liability arising out respect to Seller’s withdrawal or partial withdrawal from or termination of any action such plan, program or inaction occurring on arrangement; (B) any sick days or prior to the Closing Date personal days; and relating to one (C) any claim of an unfair labor practice, for severance pay or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder under any state unemployment compensation law or the lack of compliance with regulation or under any federal or state employment discrimination law or regulation with regulation, whether or not such Seller Liabilities are described, listed or referred to on any Schedule or Exhibit hereto, including any Seller Liability for severance or COBRA arising from Seller’s termination of said employees;
(b) Any Seller Liabilities in respect of injury to one or more Seller Deposit Accountsdeath of any person, animal or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other liability legal or equitable theory, whether or not such Seller may have incurred prior Liabilities are described, listed or referred to on any Schedule or Exhibit hereto;
(c) All Seller Liabilities for Taxes (as hereinafter defined), including Taxes relating to the Closing in connection with the operation sale of the Seller Office and which has not been credited Purchased Assets to Purchaser through proration or specifically assumed by Purchaser under this Agreement.Buyer. “
Appears in 1 contract
Samples: Asset Purchase Agreement (Duke Mining Company, Inc.)
No Assumption of Liabilities. Except for It is expressly acknowledged and agreed that, except in respect of the Assumed ContractsAssigned Contracts and as otherwise set forth herein, Seller Deposit LiabilitiesNMFS is assuming no obligations, and any other obligations debts or liabilities specifically assumed by Purchaser under this Agreementof Seller or Shareholder incurred prior to the Closing Date, it is expressly understood and agreed that Purchaser shall not assume or be liable for any of including, without limitation, the following described debts, obligations or liabilities of Seller of any kind or nature whatsoever including, but not limited to, any debt (except to the extent the same has been credited to Purchaser by proration at Closingthey may exist:
(a) or tax including any bank sharesliability, franchise or related tax, any liability for unfair labor practices, any liability indebtedness or obligation of Seller or Shareholder for borrowed money, whether absolute or contingent, direct or indirect;
(b) liabilities and obligations of Seller or Shareholder, the existence of which constitute a material breach of any of the representations or warranties made by Seller or Shareholder in Section 4 of this Agreement;
(c) any liabilities or obligations arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or in connection with any "employee benefit plan" as defined in Section 3(3) of ERISA which is maintained by Seller litigation, claim, investigation or proceeding (including, without limitation, losses, costs, expenses, attorneys' fees, and covers any employees at the Seller Office, any liability Seller may have damages incurred or will incur in connection with the transactions contemplated by this Agreement, any liability arising out of any action therewith) which relate to Seller or inaction occurring on Shareholder or relate to services performed or products delivered prior to the Closing Date and relating to one or more which arise out of actions taken by, or omissions of, Seller Deposit Accounts, including but not limited or Shareholder prior to the lack of a taxpayer identification number for an account holder Closing (whether or the lack of compliance not scheduled on Exhibit 4.8);
(d) any federal, state, local or other income taxes payable by Seller or Shareholder or any interest or penalties with respect thereto;
(e) any federal liability under any employee benefit or state law welfare plan or regulation regarding any compensation or withholding taxes owed to or with respect to one any employee or more independent contractor of Seller Deposit Accounts, or any other liability Seller may have Shareholder incurred prior to the Closing in connection with the operation Date;
(f) liabilities and obligations of Seller or Shareholder for payroll, wages, salaries, bonuses, vacation, sick pay and severance pay and other like amounts due as of the Closing Date to officers, directors, employees, contractors and agents of Seller Office or Shareholder, all of which amounts are listed in Exhibit 1.3(f) attached hereto;
(g) liabilities and which has not been credited obligations of Seller or Shareholder based upon tortious or illegal conduct prior to Purchaser through proration Closing;
(h) liabilities and obligations of Seller or specifically assumed by Purchaser under this Agreement.Shareholder for any breach or violation, as of the Closing, of any contracts of Seller with third parties, including, without limitation, the Assigned Contracts;
Appears in 1 contract
Samples: Medical Billing Business Asset Purchase Agreement (National Medical Financial Services Corp)
No Assumption of Liabilities. 1.03. Except as otherwise specifically provided for the Assumed Contractsherein, Seller Deposit LiabilitiesPurchaser is not assuming any obligations, and any other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume or be liable for any of the debts, obligations debts or liabilities of Seller whatsoever, and Seller hereby contracts and agrees to indemnify and hold Purchaser free and harmless from and against any and all such debts, obligations and liabilities, including, without limitation, the following described debts, obligations and liabilities:
(a) any liability, indebtedness or obligation of Seller for borrowed money, whether absolute or contingent, direct or indirect;
(b) any liabilities or obligations arising out of or in connection with any litigation, claim, investigation or proceeding (including, without limitation, losses, costs, expenses, attorneys' fees, and damages incurred in connection therewith) which relate to Seller, or which relate to services performed or products delivered prior to the Closing, or which arise out of actions taken by, or omissions of, Seller prior to the Closing;
(c) any federal, state, local or other income and other taxes payable by Seller, and any interest, penalties and other charges with respect thereto;
(d) any liability under any employee benefit plan or employee welfare benefit plan, or regarding any compensation or withholding taxes owed to or with respect to any employee or contractor of Seller;
(e) any liabilities and obligations of Seller for payroll, wages, salaries, bonuses, vacation, sick pay, severance pay, and other like amounts due to officers, directors, employees, contractors and agents of Seller;
(f) any liabilities and obligations of Seller based upon tortious or illegal conduct;
(g) any liabilities and obligations of Seller for any breach or violation of any kind contracts of Seller at any time other than the Assigned Contract, and any liabilities and obligations of Seller for any breach or nature whatsoever includingviolation of the Assigned Contract, but not limited tothe Crane Leases, any debt (except or the Permits, prior to the extent Closing;
(h) any liabilities and obligations of Seller for environmental or ecological matters, which occurred, existed or arose prior to the same has been credited Closing, including those relating to Purchaser by proration at Closingthe use, transport, disposal, handling or storage of hazardous or toxic materials, pollutants, contaminants, petroleum products, or waste;
(i) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability or obligation of Seller arising out for violations of law;
(j) any liability or obligation to any customer or client of Seller, or other third party, as a result of: recapture of amounts paid by any such payor to Seller; or any overpayments made by such payor to Seller; or any disallowance of any threatened claim made by Seller; and
(k) any tort liability, products liability, liability for latent defects, or pending litigationerrors of omissions liability of Seller. All of such obligations, debts and liabilities are referred to herein collectively as the "Excluded Liabilities." Notwithstanding the foregoing, Purchaser will assume the obligations of Seller under the Assigned Contract, the Crane Leases, and the Permits, but only to the extent that they represent obligations which are assignable and are, by their written terms, to be performed in the ordinary course subsequent to the Closing (collectively, the "Assumed Obligations"). Purchaser shall not have any responsibility whatsoever for any liability with respect or obligation to personal injury or property damage claimsany party to the Assigned Contract for verbal, any liability arising out of claims of employees employed at the Seller Office for bonusesimplied, salaries, sick leave, vacation, wages or other payments terms, conditions, limitations, or benefits commitments that are not specifically set forth in respect writing on the face of services performed at the Assigned Contract or arise as a matter of law, and Seller Office prior hereby agrees to the Closing, any liability under or in connection with any "employee benefit plan" indemnify and hold Purchaser free and NO ENCUMBRANCES
1.04. Except as to Permitted Encumbrances as defined in Section 3(3) of ERISA which is maintained 1.06 and other disclosures made by Seller and covers any employees at the Seller Office, any liability Seller may have incurred or will incur to Purchaser in connection with the transactions contemplated by this Agreement, any liability arising out the conveyance of any action or inaction occurring on or prior the Assets to Purchaser hereunder shall be free and clear of all claims, security interests, pledges, options, rights of first refusal, liens, financing statements, deeds of trust, mortgages, charges, assessments, restrictions, leases, and encumbrances. All such claims, security interests, pledges, options, rights of first refusal, liens, financing statements, deeds of trust, mortgages, charges, assessments, restrictions, leases and encumbrances are herein referred to individually as an "Encumbrance" and collectively as "Encumbrances." Should it be determined after the Closing Date that any Encumbrance (other than a Permitted Encumbrance) exists, Purchaser shall give Seller written notice of such Encumbrance and relating Seller will have ten (10) business days after written notice to one or more cure the same. Should Seller Deposit Accountsfail to cure same within such time period, Purchaser may, at Purchaser's option, discharge such Encumbrance, and proceed to recover from Seller all costs and expenses of discharging same, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, or any attorneys fees and court costs and other liability Seller may have out-of-pocket expenses incurred prior to the Closing in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this Agreementin discharging same and in recovering same from Seller.
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Samples: Sale and Purchase Agreement (First Wave Marine Inc)
No Assumption of Liabilities. Except for the Assumed Contracts, Seller Deposit Buyer shall not assume any Liabilities, obligations or other Claims of Seller, its Affiliates or any of their respective Related Persons, including, without limitation, any of the following Liabilities (all items in this Section 1.3 being, collectively, the “Excluded Liabilities”), and Seller shall retain such Excluded Liabilities:
(a) all Liabilities under or relating to the Excluded Assets;
(b) all Liabilities of Seller under or relating to the Priority Term Loan, the FILO Facility, the Exit Term Loan or the Intercompany Note;
(c) all Liabilities of Seller under any Customer Orders, the Purchase Orders (including Liabilities in respect of customer deposits, security deposits and prepaid items), or Seller’s consumer rebate program(s);
(d) all Liabilities for Excluded Taxes;
(e) all Liabilities under the CBA, or any other obligations agreement or liabilities specifically assumed arrangement with any employee collective bargaining representative, whether or not formally recognized by Purchaser Seller;
(f) all Liabilities under any Employee Benefit Plans, including the Pension Plan;
(g) all Employee Liabilities;
(h) all Liabilities arising out of, or relating to the ownership or use of the Business and/or the Acquired Assets prior to the Closing;
(i) all Liabilities of Seller arising under or incurred in connection with the negotiation, preparation, execution and performance of this Agreement, the Ancillary Agreements to which Seller is a party and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(j) all City of Huntsville Project Development Liabilities;
(k) all Liabilities arising from and in connection with grants of restricted common unit/share awards and stock options by Seller;
(l) all Liabilities of Seller under this Agreement, it or under any Ancillary Agreement to which Seller is expressly understood a party;
(m) all Liabilities under any Excluded Contracts and agreed that Purchaser shall not assume or be liable for any Leases;
(n) all State of Alabama Project Development Liabilities;
(o) the debts, obligations or liabilities of Seller of any kind or nature whatsoever including, but not limited to, any debt Retained Litigation;
(except to the extent the same has been credited to Purchaser by proration at Closingp) or tax including any bank shares, franchise or related tax, any liability for unfair labor practices, any liability or obligation of Seller all Liabilities arising out of any threatened or pending litigationrelating to applicable Environmental Laws and other Laws, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, any liability under or including in connection with any "employee benefit plan" as defined contamination, clean-up or remediation associated therewith, including those required for, identified in Section 3(3connection with, or resulting from the movement or removal (other than actions by Buyer or its agents in violation of applicable Environmental Laws and other Laws) of ERISA which is maintained by Seller and covers the Acquired Assets from any employees at the Seller Office, any liability Seller may have incurred Owned Real Property or will incur in connection with the transactions contemplated by this Agreement, any liability Leased Real Property;
(q) all Liabilities arising out of any action or inaction occurring on or prior to the Closing Date and relating to one any product or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, service warranty or any other liability Seller may have incurred prior to the Closing product or service liability, whether in connection with the operation respect of the Products, the Business or otherwise; and
(r) the D&O Insurance (including the cost thereof and any deductibles or retentions associated therewith) and all Liabilities and obligations to indemnify and hold harmless any Seller Office and which has not been credited to Purchaser through proration D&Os or specifically assumed by Purchaser under this Agreementemployees.
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No Assumption of Liabilities. Except Neither the Parent nor the Company shall assume, take responsibility for the Assumed Contractsor be obligated to pay any liabilities, Seller Deposit Liabilities, and any debts or other obligations or liabilities specifically assumed by Purchaser under this Agreement, it is expressly understood and agreed that Purchaser shall not assume or be liable for any of the debts, obligations or liabilities of Seller of any kind (including under any employee benefit plan) of the Seller or its Affiliates (collectively, the “Retained Liabilities”), except that the Company will assume certain current trade payables not to exceed $100,000 in the aggregate, as identified on Schedule 3.3. Without limiting the foregoing, the Seller acknowledges that the Retained Liabilities shall include the following:
(a) Any and all liability arising under any Third Party Payor Program, including without limitation, liability arising from false or fraudulent claims, overpayments, set-offs, recoupments, overbilling, civil money penalties, credit balances, inappropriate coding or inadequate documentation, provider agreement, or state survey agency report or action related to any time period prior to the Closing Date regardless of whether any such claims of liability arise prior to or after the Closing Date;
(b) Any liability or obligation arising out of any employee benefit plan maintained by or covering employees of Seller or to which Seller has made any contribution or to which Seller could be subject to any liability;
(c) Any losses, costs, expenses, damages, claims, demands and judgments of every kind and nature whatsoever including, but not limited (including the defenses thereof and reasonable attorneys’ and other professional fees) related to, arising out of, or in connection with the parties’ waiver of compliance with any debt bulk sales act or any similar statute as enacted in any jurisdiction, domestic or foreign (except if applicable);
(d) Any liability or obligation arising out of any breach by Seller prior to the extent Closing of any provision of any agreements of the same has been credited Seller or any other contract to Purchaser which Seller is a party;
(e) Any liability of Seller with respect to any claim or cause of action, regardless of when made or asserted, which arises (i) out of or in connection with the business and operations of Seller (including without limitation the Business) prior to the Closing, (ii) with respect to any goods or services provided by proration at Seller prior to the Closing) or tax , including any bank shares, franchise or related tax, any liability for unfair labor practiceswithout limitation, any liability or obligation (A) pursuant to any express or implied representation, warranty, agreement, or guarantee made by Seller or (B) imposed or asserted to be imposed by operation of law, in connection with any service performed or product designed, manufactured, sold, or leased by or on behalf of Seller arising out of any threatened or pending litigation, any liability with respect to personal injury or property damage claims, any liability arising out of claims of employees employed at the Seller Office for bonuses, salaries, sick leave, vacation, wages or other payments or benefits in respect of services performed at the Seller Office prior to the Closing, including without limitation, any liability under claim related to any product delivered in connection with the performance of such service and any claims seeking to recover for consequential damage, lost revenue, or income, including pursuant to any doctrine of product liability, or (iii) out of or in connection with the business and operations of Seller (including without limitation the Business) prior to the Closing under any "employee federal, state, or local law, rule, or regulation;
(f) Any liability or obligation, arising prior to or as a result of the Closing, to any employee, agent, or independent contractor of Seller, whether or not employed by Company after the Closing, or under any benefit plan" as defined in Section 3(3arrangement with respect thereto;
(g) Any liability of ERISA which is maintained by Seller and covers any employees existing at the Seller OfficeClosing, including any liability related to any matter described in the Schedules to this Agreement;
(h) Any liability or obligation for Taxes, withholdings, assessments, charges, fees, and impositions, including interest and penalties thereon or with respect thereto, whether disputed or not, related to the operation of the Business prior to the Closing or related to Seller’s other businesses prior to or after the Closing, including any liabilities or obligations of Seller may have incurred relating to sales and use, transfer, documentary, income or will incur in connection other Taxes levied on the transfer of the rights and Assets pursuant to this Agreement; and
(i) All wages, commissions, vacation, holiday, workers’ compensation and sick pay obligations of Seller with respect to Seller’s employees, agents or independent contractors accrued through the Closing Date and all bonuses and fringe benefits as to such employees accrued through the Closing Date, and all severance pay obligations of Seller to employees resulting from Seller’s consummation of the transactions contemplated by this Agreement, any liability arising out of any action or inaction occurring on or prior to the Closing Date and relating to one or more Seller Deposit Accounts, including but not limited to the lack of a taxpayer identification number for an account holder or the lack of compliance with any federal or state law or regulation with respect to one or more Seller Deposit Accounts, or any other liability Seller may have incurred prior to the Closing in connection with the operation of the Seller Office and which has not been credited to Purchaser through proration or specifically assumed by Purchaser under this Agreement.
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