Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any liabilities or obligations of Seller of any kind, nature or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities"). Except items for which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything in Section 1.2 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any of the following Excluded Liabilities: (i) any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); or (ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) attributable to periods or events prior to or ending or occurring on the Closing Date or (y) any Taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; or (iii) any and all liabilities or obligations of Seller arising out of any litigation, action, suit or proceeding based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings in respect of products sold or services provided by Seller on or prior to the Closing Date and attributable to acts performed or omitted by Seller on or prior to the Closing Date; or (iv) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Date; or (v) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to the Closing Date; (vi) any and all liabilities or obligations of Seller under any of the Contracts assigned to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, or (ii) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date; or (vii) any and all liabilities or obligations of Seller arising out of or related to this Agreement; or (viii) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know or unknown, existing or occurring at or on any real property or premises owned, leased or occupied by Seller on or prior to the Closing Date (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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or (ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azz Inc)
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this AgreementSubject as set forth in Section 2.05, Buyer shall Buyers are not assumeassuming, and shall not be deemed to have assumed assumed, any liabilities or be obligations of Sellers of any kind or nature whatsoever, except as expressly provided herein or in the Bill xx Sale. Without limiting the generality of the foregoing, it is hereby agreed that Buyers are not assuming any way liable for or subject to or liability and shall not have any obligation for or with respect to, : (i) any liabilities or obligations of Seller Sellers that arise under the terms of any kinda contract, nature agreement, license, lease, sales order, purchase order, or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities"). Except items for other commitment which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything in Section 1.2 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any assigned as contemplated by Section 1.01(c) of the following Excluded Liabilities:
(i) any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA)this Agreement; or
(ii) any and all liabilities or obligations of Seller in respect of Sellers (x) any Taxes (as such term is hereinafter defined) attributable to periods or events the operations of the Business prior to or ending or occurring on the Closing Date or (y) any Taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or that would not have arisen but for the consummation of the transactions contemplated herebyby this Agreement, unless, in either case, such liabilities or obligations are expressly assumed by Buyers as provided herein or in the Bill xx Sale; or
(iii) any and all liabilities or obligations of Seller Sellers under any Plan (as defined in Section 3.01(k)), including any obligation to adopt or to sponsor such Plan except as Buyers may, in their sole discretion, elect to adopt or to sponsor; (iv) any liabilities or obligations of Sellers for any commissions, refunds, rebates, discounts or other such sums, falling due before the Closing Date, in respect of services rendered prior to the Closing Date; (v) any obligation of Sellers arising out of any litigation, action, suit or proceeding based upon (A) an event occurring, a condition existing occurring or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (yB) ------------- a claim arising on and after the Closing Date based on an event occurring prior to the Closing Date in the case of claims, litigation, actions, suits or proceedings claims in respect of products sold or services sold and delivered or required to be delivered by Sellers or provided by Seller on Sellers or the conduct of the Business prior to the Closing Date and attributable to acts performed or omitted by Seller on or Sellers prior to the Closing Date; or
(ivvi) all warranties, liabilities any obligation of Sellers to any employee in respect of personal or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or sick days accrued prior to the Closing Date; or
(v) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to the Closing Date;
(vi) any and all liabilities or obligations of Seller under any of the Contracts assigned to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, or (ii) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(vii) any and all liabilities or obligations obligation of Seller arising out of or related Sellers to this Agreement; or
(viii) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know or unknown, existing or occurring at or on any real property or premises owned, leased or occupied by Seller on or prior to the Closing Date (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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing Plan.any
Appears in 1 contract
Samples: Asset Purchase Agreement (Health Management Systems Inc)
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this AgreementSubject as set forth in Section 2.05, Buyer shall Buyers are not assumeassuming, and shall not be deemed to have assumed assumed, any liabilities or be obligations of Sellers of any kind or nature whatsoever, except as expressly provided herein or in the Xxxx of Sale. Without limiting the generality of the foregoing, it is hereby agreed that Buyers are not assuming any way liable for or subject to or liability and shall not have any obligation for or with respect to, : (i) any liabilities or obligations of Seller Sellers that arise under the terms of any kinda contract, nature agreement, license, lease, sales order, purchase order, or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities"). Except items for other commitment which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything in Section 1.2 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any assigned as contemplated by Section 1.01(c) of the following Excluded Liabilities:
(i) any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA)this Agreement; or
(ii) any and all liabilities or obligations of Seller in respect of Sellers (x) any Taxes (as such term is hereinafter defined) attributable to periods or events the operations of the Business prior to or ending or occurring on the Closing Date or (y) any Taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or that would not have arisen but for the consummation of the transactions contemplated herebyby this Agreement, unless, in either case, such liabilities or obligations are expressly assumed by Buyers as provided herein or in the Xxxx of Sale; or
(iii) any and all liabilities or obligations of Seller Sellers under any Plan (as defined in Section 3.01(k)), including any obligation to adopt or to sponsor such Plan except as Buyers may, in their sole discretion, elect to adopt or to sponsor; (iv) any liabilities or obligations of Sellers for any commissions, refunds, rebates, discounts or other such sums, falling due before the Closing Date, in respect of services rendered prior to the Closing Date; (v) any obligation of Sellers arising out of any litigation, action, suit or proceeding based upon (A) an event occurring, a condition existing occurring or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (yB) ------------- a claim arising on and after the Closing Date based on an event occurring prior to the Closing Date in the case of claims, litigation, actions, suits or proceedings claims in respect of products sold or services sold and delivered or required to be delivered by Sellers or provided by Seller on Sellers or the conduct of the Business prior to the Closing Date and attributable to acts performed or omitted by Seller on or Sellers prior to the Closing Date; or
(ivvi) all warranties, liabilities any obligation of Sellers to any employee in respect of personal or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or sick days accrued prior to the Closing Date; or
(vvii) all warrantiesany obligation of Sellers to any employee of, liabilities or obligations consultant to, the Business who does not become a Retained Employee (as hereinafter defined) or to customers with respect to any other employee of, or consultant to, the repair Business whose employment or replacement of any products which have been manufactured, sold or otherwise provided consultancy is terminated by Seller on or Sellers prior to or effective at the Closing Date and which are shipped by Seller or, except as provided in Section 4.07 hereof, to any employee who is on or prior to administrative leave as of the Closing Date;
; and (viviii) any and all liabilities Taxes incurred by or obligations of Seller under any of the Contracts assigned imposed upon Sellers relating to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or periods prior to the Closing Date, whether such Taxes are assessed before or (ii) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior Date, includ ing without limitation, but subject to the Closing Date; or
(viiprovisions of Section 4.05(a) hereof, any and all liabilities Taxes incurred by or obligations of Seller arising out of or related lawfully imposed upon Sellers, other than any Taxes to this Agreement; or
(viii) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know or unknown, existing or occurring at or on any real property or premises owned, leased or occupied be paid by Seller on or prior to the Closing Date (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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition Buyers in accordance with this Agreement or any of the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing PlanAncillary Agreements.
Appears in 1 contract
Samples: Asset Purchase Agreement (GHS Inc)
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any liabilities or obligations of Seller of any kind, nature or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities"). Except items for which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything Anything in Section 1.2 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any of the following Excluded Liabilities:
(i) except for the liabilities assumed by Buyer pursuant to section 1.2(viii) hereof, any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and in connection with the operation of the Business, including without limitation any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Dateproceedings, (c) any other matters arising out of the employment of people on or prior to in connection with the Closing Dateoperation of the Business, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, vacation accruals, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); or
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) attributable to the Business and attributable to periods or events prior to or ending or occurring on the Closing Date or (y) except as otherwise specifically provided in Section 6.10 hereof, any Taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; or
(iii) any and all liabilities or obligations of Seller relating to the Business arising out of any litigation, action, suit or proceeding based upon an event occurring, a condition existing or a claim arising relating to the Business (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings in respect of products of the Business sold or services provided by Seller on or prior to the Closing Date and attributable to acts relating to the Business performed or omitted by Seller on or prior to the Closing DateDate (other than any of the foregoing which constitute Assumed Liabilities); or
(iv) all warranties, liabilities any individual warranty claim in excess of $3,000.00 (or obligations to customers any warranty claim of $3,000.00 or less in excess of Buyer's maximum Assumed Liability for such claims under Section 1.2(xiii) hereof) with respect to the repair or replacement of any finished products related to the Business which have been manufactured, sold or otherwise provided manufactured by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Date; or
(v) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to the Closing Date;
(vi) any and all liabilities or obligations of Seller under any of the Leases or Contracts assigned to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, or (ii) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date (other than any of the foregoing which constitute Assumed Liabilities); or
(vi) any and all liabilities or obligations arising out of any claim, litigation, action, suit or proceeding by third parties (including, without limitation, current or former employees of the Business) in respect of the death or personal injury of any person attributable to acts relating to the Business performed or omitted, or the operation of the Business, on or prior to the Closing Date (including, without limitation, any Releases of any Hazardous Material on, at or from any Site existing or occurring on or prior to the Closing Date); or
(vii) any and all liabilities or obligations of Seller arising out of or related to this Agreement; or
(viii) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know or unknown, existing or occurring at or on any real property or premises owned, leased or occupied by Seller on or prior to the Closing Date (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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing Plan.
Appears in 1 contract
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall is not assumeassuming, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect toassumed, any liabilities or obligations of Seller of any kind, kind or nature or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities")1.3 hereof. Except items for which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything Anything in Section 1.2 1.3 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, it is hereby agreed that Buyer shall is not assumeassuming, and shall not be deemed to have assumed or be in assumed, any way liable for or subject to or liability and shall not have any obligation for or with respect to, to any liability or obligation of the following Excluded LiabilitiesSeller:
(i) under any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason employee benefit plan of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); or;
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) sales, use or excise taxes, income taxes, taxes based on or measured by income or franchise taxes attributable to periods or events prior to or ending or occurring on the Closing Date or (y) any Taxessales, use or excise taxes, income taxes, or any other taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by Seller or any partneraffiliate, affiliatestockholder, director, employee Employee or officer of Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; orhereby (other than such taxes, fees and expenses which are accrued in the ordinary course of business prior to Closing);
(iii) any and all liabilities or obligations of Seller arising out of any litigationaction, actioncondition, suit or proceeding based upon an event occurring, a condition existing occurring or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings claims in respect of products sold or services provided by Seller on or prior to the Closing Date and attributable to acts performed or omitted by Seller on or prior to the Closing Date; or, provided, however, that Buyer shall assume any such liability or obligation to the extent it has been reserved against on the Closing Balance Sheet;
(iv) pursuant to existing loan agreements (other than payment obligations assumed pursuant to Section 1.3 above), and all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Dateagreements executed in connection therewith; or
(v) all warrantiesto any present or former shareholder, liabilities officer, director or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to the Closing Date;
(vi) any and all liabilities or obligations Employee of Seller under (including, without limitation, for bonuses, fringe benefits, vacation or holiday pay, wages or severance pay, but excluding any of the Contracts assigned accrued liabilities specifically assumed by Buyer pursuant to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, or (ii) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(vii) any and all liabilities or obligations of Seller arising out of or related to this Agreement; or
(viii) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know or unknown, existing or occurring at or on any real property or premises owned, leased or occupied by Seller on or prior to the Closing Date (hereafter an "Environmental Condition"Section 1.3 above), 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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing Plan.
Appears in 1 contract
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any liabilities or obligations of Seller of any kind, nature or description whatsoever, except as expressly provided in this Section 1.3 or in Section 1.2 hereof (the "“Excluded Liabilities"”). Except items for which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything Anything in Section 1.2 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any of the following Excluded Liabilities:
(i) except as specifically provided in Section 1.2(i) or Section 6.9, any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller arise prior to or on the Closing Date in connection with persons employed or seeking to be employed and employed, including without limitation any and all such claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("“NLRB"”) proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Dateproceedings, (c) any other matters arising out of the employment of people on or prior to the Closing Datepeople, such as workers' ’ compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, vacation accruals, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's ’s failure, through any act or omission prior to or on the Closing DateClosing, Date to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "“qualified beneficiary" ” (as defined in COBRA); or
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) attributable to periods or events prior to or ending or occurring on the Closing Date Date, or (y) any Taxes, legal, accounting, brokerage, finder's ’s fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; or
(iii) any and all liabilities or obligations of Seller arising out of any litigation, action, suit or proceeding based solely upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings in respect of products sold or services provided by Seller on or prior to the Closing Date and that Buyer can demonstrate are attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(iv) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Date; provided, however, Buyer shall not provide any warranty work to customers with respect to any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date without Seller’s prior written consent; or
(v) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to Buyer after the Closing Date;; provided, however, Buyer shall be responsible for any liabilities or obligations that may arise in connection with the shipping of such products; or
(vi) any and all liabilities or obligations of Seller under any of the Contracts assigned to Buyer hereunder based solely upon an event occurring, a condition existing occurring or a claim arising (x) on or prior to the Closing Date, or (iiy) after the Closing Date in solely to the case of extent that Buyer can demonstrate those liabilities or and obligations thereunder are attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(vii) any and all liabilities or obligations of Seller arising out of or related to this Agreement; or
(viii) except as set forth on Schedule 1.3(viii), any and all liabilities or obligations of Seller arising out of or related to matters disclosed Seller’s galvanizing plant in Winsted, Minnesota arising (x) on Schedule 3.20 or prior to the Closing Date, or (y) after the Closing Date solely to the extent that Buyer can demonstrate those liabilities and ------------- obligations are attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(ix) any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable (1) indicated in any environmental reports as listed on Schedule 3.20(a) with respect to any condition the Purchased Assets, or circumstance, know or unknown, existing or occurring (2) at or on from any real property to which Hazardous Material has been sent or premises owned, leased or occupied arranged for shipment by Seller on or prior to the Closing Date (hereafter an "a “Seller 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 Seller Environmental Condition, (y) any liability arising in tort (strict or otherwise) resulting from any such Seller Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Seller Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ixx) (a) all obligations of the Seller for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of the Seller evidenced by bonds, debentures, notes or similar instruments, including, without limitation, any industrial revenue bonds, (c) all obligations of the Seller upon which interest charges are customarily paid (excluding current accounts payable in the ordinary course of business), (d) all obligations of the Seller under conditional sale or other title retention agreements relating to property acquired by the Seller, (e) all obligations of the Seller in respect of the deferred purchase price of property or services (excluding current accounts payable in the ordinary course of business), (f) all other indebtedness of the types described herein of other persons or entities secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Encumbrance on property owned or acquired by the Seller, whether or not such indebtedness secured thereby has been assumed by Seller, (g) all guarantees by the Seller of the indebtedness of any other person or entity, (h) all capital lease obligations of the Seller (not otherwise assumed pursuant to this Agreement), (i) all obligations, contingent or otherwise, of the Seller as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of the Seller, in respect of bankers’ acceptances and (k) all of the Seller’s and Shareholder’s fees relating to the transaction contemplated by this Agreement (collectively, the “Seller’s Indebtedness”) The “Seller’s Indebtedness” shall include the indebtedness of any other entity (including any partnership in which the Seller is a general partner) to the extent the Seller is liable or could be liable therefor as a result of the Seller’s ownership in, or other relationship with, such other entity; or
(xi) any and all liabilities or obligations of Seller occurring prior to or after the Closing Date with respect to any Contract, including, without limitation, any Contract pursuant to which any counterparty to such Contract is related to Seller by blood or “control” (as defined in Section 5.2), except for any such Contract that is assumed by Buyer and set forth on Schedule 1.2B; or
(xii) any and all liabilities or obligations of Seller relating to the Cicero Real Property and Seller's Qualified Profit Sharing Plan’s plant and equipment attributable to the Cicero Real Property;
(xiii) any and all liabilities or obligations of Seller regarding termination or severance pay to salaried, non-exempt or hourly employees; or
(xiv) any and all liabilities or obligations due to Lexus Financial Services in regard to Seller’s 2008 Lexus LS460 (Account Number 0046467685).
Appears in 1 contract
Samples: Asset Purchase Agreement (Azz Inc)
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall is not assumeassuming, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect toassumed, any liabilities or obligations of Seller of any kind, kind or nature or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities")1.3 above. Except items for which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything Anything in Section 1.2 hereof 1.3 or elsewhere herein in this Agreement to the contrary notwithstanding notwithstanding, and without limiting the generality of the foregoing, it is hereby agreed that Buyer shall is not assumeassuming, and shall not be deemed to have assumed or be in assumed, any way liable for or subject to or liability and shall not have any obligation for or with respect toto any liability or obligation of Seller or any affiliate, stockholder, director, employee or officer of Seller:
A. pursuant to funded indebtedness of Seller or any affiliate of Seller, whether secured or unsecured;
B. under any employee benefit plan of Seller, and no employee benefit plan of Seller shall be merged into an employee benefit plan of Buyer or become sponsored by Buyer as a result of the following Excluded Liabilities:transactions contemplated hereby;
C. in respect of (i) any and all claimssales, liabilities use or obligations that ariseexcise taxes, result fromincome taxes or other taxes based on or measured by income, or relate franchise taxes, in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations such case that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); or
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) attributable to periods or events prior to or ending or occurring on the Closing Date or (yii) any Taxessales, use or excise taxes, income taxes, or any other taxes, legal, accounting, brokerage, finder's ’s fees, or other expenses of whatsoever kind or nature incurred by Seller or any partneraffiliate, affiliatestockholder, director, employee or officer of Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; or;
(iii) any and all liabilities or obligations of Seller D. arising out of any litigation, action, suit or proceeding based upon an event occurring, a condition existing occurring or a claim arising (xi) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (yii) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings claims in respect of products sold or services provided by Seller on or prior to the Closing Date and attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(iv) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Date; or
(v) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to the Closing Date;
(vi) any and all liabilities or obligations of Seller under any of the Contracts assigned to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, or (ii) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(vii) any and all liabilities or obligations of Seller E. arising out of or related to the Assets or this Agreement; or;
(viii) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable F. to any condition present or circumstanceformer stockholder, know officer, director or unknownemployee of Seller (including, existing without limitation, for bonuses, fringe benefits, vacation or occurring at holiday pay, wages or on any real property or premises owned, leased or occupied by Seller on or prior to the Closing Date (hereafter an "Environmental Condition"severance pay), 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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing Plan.
Appears in 1 contract
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, The Buyer shall is not assumeassuming, and shall not be deemed to have assumed assumed, any liabilities or be in obligations of the Seller of any way liable for kind or subject to or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, it is hereby agreed that, other than the Assumed Liabilities, the Buyer is not assuming any liability and shall not have any obligation for or with respect to, :
(i) any liabilities of the Seller or obligations of Seller of any kind, nature its stockholders or description whatsoever, affiliates relating to the Business Assets or the Business that are incurred prior to the Closing Date (except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities"2.04). Except items for which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything in Section 1.2 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any of the following Excluded Liabilities:
(i) any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); or;
(ii) any and all liabilities or obligations of Seller in respect of (x) any liability for Taxes (as such term is hereinafter definedA) relating to the Business Assets or the Business incurred in or attributable to periods or events prior to or ending or occurring on the Closing Date or any period (y) any Taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; or
(iiiportion thereof) any and all liabilities or obligations of Seller arising out of any litigation, action, suit or proceeding based upon an event occurring, a condition existing or a claim arising (x) ending on or prior to the Closing Date or (includingB) allocated to the Seller under Section 7.03 or (C) imposed pursuant to any bulk sales tax provision as described in Section 8.02;
(iii) any liabilities or obligations of the Seller or its stockholders or affiliates that arise under the terms of a contract, without limitationagreement, the litigationlicense, actionslease, suitssales order, proceedings and claims listed on Schedule 3.15 hereof)purchase order, or (y) ------------- after the Closing Date other commitment not included in the case of claims, litigation, actions, suits or proceedings in respect of products sold or services provided by Seller on or prior to the Closing Date and attributable to acts performed or omitted by Seller on or prior to the Closing Date; orBusiness Assets;
(iv) all warranties, any liabilities or obligations to customers with respect to of the repair Seller or replacement of its stockholders or affiliates under any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Date; orPlan (as defined in Section 3.01(k));
(v) all warranties, liabilities or obligations to customers with respect to any intercompany accounts payable of the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to the Closing DateSeller;
(vi) any and all liabilities liability or obligations of Seller under any obligation of the Contracts assigned Seller or its stockholders or affiliates arising out of any action, suit, investigation or proceeding to Buyer hereunder the extent based upon an event occurring, a condition existing occurring or a claim arising (xA) on with respect to any matter arising under a Client Contract prior to July 1, 2006 (subject to the representations and warranties of the Seller contained herein and notwithstanding that the clients of the Business, as a condition to the transfer of a Client Contract to the Buyer or its Designated Subsidiary, may require the Buyer or its Designated Subsidiary (as between the client and the Buyer or its Designated Subsidiary) to assume liabilities or obligations with respect to matters arising under such Client Contract prior to July 1, 2006) or (B) with respect to any matter not involving a Client Contract (i) prior to the Closing Date, or (ii) after the Closing Date in the case of liabilities or obligations thereunder claims attributable to acts performed or omitted by the Seller on or its stockholders or affiliates prior to the Closing Date; orand
(vii) any and all liabilities obligation of the Seller or obligations of Seller arising out of its stockholders or related to this Agreement; or
(viii) affiliates under any and all liabilities employment or obligations arising out of consulting relationships or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know or unknown, existing or occurring at or on any real property or premises owned, leased or occupied by Seller on or prior to the Closing Date (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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing Planarrangements.”
Appears in 1 contract
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any liabilities or obligations of Seller of any kind, nature or description whatsoever, except as expressly provided in this Section 1.3 or in Sections 1.2 and 1.4.1 hereof (the "“Excluded Liabilities"”). Except items for which a reserve is set forth -------------------- Anything in the Audited Financial Statements (but only to the extent of such reserve), anything in Section Sections 1.2 or 1.4.1 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any of the following Excluded Liabilities:
(i) any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); or
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) attributable to periods or events prior to or ending or occurring on the Closing Date Date, or (y) any Taxes, legal, accounting, brokerage, finder's ’s fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; or
(iiiii) any and all liabilities or obligations of Seller arising out of any litigation, action, suit or proceeding based upon an event occurring, a condition existing (other than any Environmental Condition (as such term is hereinafter defined)) or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings in respect of products sold or services provided by Seller on or prior to the Closing Date and attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(iviii) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Date; or
(viv) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to Buyer after the Closing Date;; or
(viv) any and all liabilities or obligations of Seller under any of the Contracts assigned to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, or (iiy) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(viivi) any and all liabilities or obligations of Seller arising out of or related to this Agreement; or;
(vii) [Intentionally left blank]
(viii) except for the indebtedness specifically described above in Section 1.2(iii), (a) all obligations of the Seller for borrowed money or with respect to deposits or advances of any and kind, (b) all liabilities obligations of the Seller evidenced by bonds, debentures, notes or similar instruments, including, without limitation, any industrial revenue bonds, (c) all obligations arising out of the Seller upon which interest charges are customarily paid (excluding current accounts payable in the ordinary course of business), (d) all obligations of the Seller under conditional sale or related other title retention agreements relating to matters disclosed on Schedule 3.20 and ------------- any Release property acquired by the Seller, unless same relates to obligations of Contracts assumed by Buyer, (as such term is hereinafter definede) or threat all obligations of Release into the environment Seller in respect of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know or unknown, existing or occurring at or on any real the deferred purchase price of property or premises ownedservices (excluding current accounts payable in the ordinary course of business), leased unless same relates to obligations of Contracts assumed by Buyer, (f) all other indebtedness of the types described herein of other persons or occupied entities secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Encumbrance on property owned or acquired by the Seller, whether or not such indebtedness secured thereby has been assumed, (g) all guarantees by the Seller on of the indebtedness of any other person or prior entity, (h) all capital lease obligations of the Seller, unless same relates to obligations of Contracts assumed by Buyer, (i) all obligations, contingent or otherwise, of the Seller as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of the Seller, in respect of bankers’ acceptances and (k) all of the Seller’s and the Shareholders’ costs and expenses, including legal and accounting fees, relating to or incurred in connection with, the transaction contemplated by this Agreement (collectively, the items described in clauses (a) through (k), the “Seller’s Indebtedness”). The Seller’s Indebtedness shall include the indebtedness of any other entity (including any partnership in which the Seller is a general partner) to the Closing Date (hereafter an "Environmental Condition")extent the Seller is liable or could be liable therefor as a result of the Seller’s ownership in, including without limitation (x) ----------------------- any suitsor other relationship with, causes of action, proceedings, judgments, administrative and judicial orders arising out of any matter relating to such Environmental Condition, (y) any liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined)other entity; orand
(ix) any and all liabilities or obligations of Seller occurring prior to or after the Closing Date with respect to any Contract, including, without limitation, any Contract pursuant to which any counterparty to such Contract is related to Seller's Qualified Profit Sharing PlanSeller in any way whatsoever, except for any such Contract that is assumed by Buyer and set forth on Schedule 1.2B.
(x) all liabilities and obligations of the Seller described in Section 1.4.1 hereof; and
(xi) all liabilities and obligations arising out of the Employment Contracts, with the exception of any liability expressly assumed by the Buyer under this Agreement in respect of any Transferred Employee, as hereinafter defined.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azz Inc)
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall is not assumeassuming, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect toassumed, any liabilities or obligations of Seller or VSI of any kind, kind or nature or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities")1.3 hereof. Except items for which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything Anything in Section 1.2 1.3 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, it is hereby agreed that Buyer shall is not assumeassuming, and shall not be deemed to have assumed or be in assumed, any way liable for or subject to or liability and shall not have any obligation for or with respect to, to any liability or obligation of the following Excluded LiabilitiesVSI or Seller:
(i) under any and all claims, employee benefit plan of VSI or Seller other than any accrued liabilities or obligations that arise, result from, or relate in any way specifically assumed by Buyer pursuant to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); orSection 1.3 above;
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) sales, use or excise taxes, income taxes, taxes based on or measured by income or franchise taxes attributable to periods or events prior to or ending or occurring on the Closing Date or (y) any Taxessales, use or excise taxes, income taxes, or any other taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by VSI or Seller or any partneraffiliate, affiliatestockholder, director, employee Employee or officer of VSI or Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; orhereby (other than such taxes, fees and expenses which are accrued in the ordinary course of business prior to Closing);
(iii) any and all liabilities or obligations of Seller arising out of any litigationaction, actioncondition, suit or proceeding based upon an event occurring, a condition existing occurring or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings claims in respect of products sold or services provided by VSI or Seller on or prior to the Closing Date and attributable to acts performed or omitted by VSI or Seller on or prior to the Closing Date; or
(iv) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Date; or
(v) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to the Closing Date;
(vi) any and all liabilities or obligations of Seller under any of the Contracts assigned to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, provided, however, that Buyer shall assume any such liability or (ii) after obligation to the extent it has been reserved against on the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date; orBalance Sheet;
(viiiv) any pursuant to existing loan agreements (other than payment obligations assumed pursuant to Section 1.3 above), and all liabilities or obligations of Seller arising out of or related to this Agreement; oragreements executed in connection therewith;
(viiiv) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition present or circumstanceformer shareholder, know officer, director or unknownEmployee of VSI or Seller (including, existing without limitation, for bonuses, fringe benefits, vacation or occurring at holiday pay, wages or on severance pay, but excluding any real property or premises owned, leased or occupied accrued liabilities specifically assumed by Seller on or prior Buyer pursuant to the Closing Date (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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter definedSection 1.3 above); or
(ixvi) any and all liabilities incurred in connection with the negotiation, preparation, execution or obligations related to Seller's Qualified Profit Sharing Planperformance of this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hydrochem Industrial Services Inc)
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall Buyers are not assumeassuming, and shall not be deemed to have assumed assumed, any liabilities or be in obligations of Sellers of any way liable for kind or subject to or nature whatsoever, except as expressly provided herein and as set forth on Schedule 2.03. Without limiting the generality of the foregoing, it is hereby agreed that Buyers are not assuming any liability and shall not have any obligation for or with respect to, : (i) any liabilities or obligations of Seller Sellers that arise under the terms of any kinda contract, nature agreement, license, lease, sales order, purchase order, or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities"). Except items for other commitment which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything in Section 1.2 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any assigned as contemplated by Section 1.01(c) of the following Excluded Liabilities:
(i) any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA)this Agreement; or
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) attributable to periods or events prior to or ending or occurring on the Closing Date or (y) any Taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or Sellers that would not have arisen but for the consummation of the transactions contemplated herebyby this Agreement, unless, such liabilities or obligations are expressly assumed by Buyers as provided herein and included in Schedule 2.03 or otherwise expressly provided for herein, including, without limitation, Buyer's obligations under 10 16 this Agreement; or
(iii) any and all liabilities or obligations of Seller Sellers under any Plan (as defined in Section 3.01(l)), including any obligation to adopt or to sponsor such Plan except as Buyers may, in their sole discretion, elect to adopt or to sponsor; (iv) any obligation of Sellers arising out of any litigation, action, suit or proceeding based upon (A) an event occurring, a condition existing occurring or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings in respect of products sold or services provided by Seller on or prior to the Closing Date and attributable to acts performed or omitted by Seller Sellers on or prior to the Closing Date or (B) a claim arising after the Closing Date based on an event occurring on or prior to the Closing Date in the case of claims in respect of products or services sold and delivered or required to be delivered by Sellers or provided by Sellers or the conduct of the Business on or prior to the Closing Date and attributable to acts performed or omitted by Sellers on or prior to the Closing Date; or
(ivv) all warranties, liabilities or obligations any obligation of Sellers to customers with respect any Retained Employee relating to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped their employment by Seller on or prior to the Closing Date; or
(vvi) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or except as otherwise provided in Section 4.06(d), any obligation of Sellers to any employee of, or consultant to, the Business who does not become a Retained Employee or to any other employee of, or consultant to, the Business whose employment or consultancy is terminated by Seller on or Sellers prior to or effective at the Closing Date end of the Transition Period, as hereinafter defined; and which are shipped by Seller on or prior to the Closing Date;
(vivii) any and all liabilities Taxes incurred by or obligations of Seller under any of the Contracts assigned imposed upon Sellers relating to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) periods ending on or prior to the Closing Date, whether such Taxes are assessed before or (ii) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(vii) any and all liabilities or obligations of Seller arising out of or related to this Agreement; or
(viii) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know or unknown, existing or occurring at or on any real property or premises owned, leased or occupied by Seller on or prior to the Closing Date (hereafter an "Environmental Condition"), including without limitation (xlimitation, but subject to the provisions of Section 4.04(a) ----------------------- hereof, any suitsTaxes incurred by or lawfully imposed upon Sellers, causes of action, proceedings, judgments, administrative and judicial orders arising out of other than any matter relating Taxes to such Environmental Condition, (y) any liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition be paid by Buyers in accordance with this Agreement or the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing PlanBill xx Sale.
Appears in 1 contract
Samples: Asset Purchase Agreement (Health Management Systems Inc)
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any liabilities or obligations of Seller of any kind, nature or description whatsoever, except as expressly provided in this Section 1.3 or in Sections 1.2 and 1.4.1 hereof (the "“Excluded Liabilities"”). Except items for which a reserve is set forth -------------------- Anything in the Audited Financial Statements (but only to the extent of such reserve), anything in Section Sections 1.2 or 1.4.1 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, Buyer shall not assume, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect to, any of the following Excluded Liabilities:
(i) any and all claims, liabilities or obligations that arise, result from, or relate in any way to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); or
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) attributable to periods or events prior to or ending or occurring on the Closing Date Date, or (y) any Taxes, legal, accounting, brokerage, finder's ’s fees, or other expenses of whatsoever kind or nature incurred by Seller or any partner, affiliate, director, employee or officer of Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; or
(iiiii) any and all liabilities or obligations of Seller arising out of any litigation, action, suit or proceeding based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings in respect of products sold or services provided by Seller on or prior to the Closing Date and attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(iviii) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Date, provided however that Buyer shall provide any products and services required to satisfy any such warranties, liabilities or obligations and will charge Seller for all associated direct costs; or
(viv) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to Buyer after the Closing Date;, provided however that Buyer shall provide any products and services required to satisfy any such warranties, liabilities or obligations and will charge Seller for all associated direct costs; or
(viv) any and all liabilities or obligations of Seller under any of the Contracts assigned to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, or (iiy) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date, unless such acts omitted by Seller were not required to be done prior to the Closing Date; or
(viivi) any and all liabilities or obligations of Seller arising out of or related to this Agreement; or
(viiivii) any and all liabilities environmental liability or obligations arising out obligation of or related Seller relating to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition or circumstance, know known or unknown, existing or occurring at or on any real property or premises (1) owned, leased or occupied by Seller on or prior to the Closing Date, or (2) to which Hazardous Material has been sent or arranged for shipment by Seller on or prior to the Closing Date (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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined);
(viii) (a) all obligations of the Seller for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of the Seller evidenced by bonds, debentures, notes or similar instruments, including, without limitation, any industrial revenue bonds, (c) all obligations of the Seller upon which interest charges are customarily paid (excluding current accounts payable in the ordinary course of business) other than equipment leases assumed by Buyer pursuant hereto which are included in the Assumed Liabilities, (d) all obligations of the Seller under conditional sale or other title retention agreements relating to property acquired by the Seller, unless such property is included in the Purchased Assets and its corresponding liability is included in the Assumed Liabilities, (e) all obligations of the Seller in respect of the deferred purchase price of property or services (excluding current accounts payable in the ordinary course of business), unless the property is included in the Purchased Assets and its corresponding liability is included in the Assumed Liabilities or the services will continue to be performed after the Closing Date, (f) all other indebtedness of the types described herein of other persons or entities secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Encumbrance on property owned or acquired by the Seller, whether or not such indebtedness secured thereby has been assumed, (g) all guarantees by the Seller of the indebtedness of any other person or entity, (h) all capital lease obligations of the Seller, (i) all obligations, contingent or otherwise, of the Seller as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of the Seller, in respect of bankers’ acceptances and (k) all of the Seller’s and Sole Shareholder’s costs and expenses, including legal and accounting fees, relating to or incurred in connection with, the transaction contemplated by this Agreement (collectively, the items described in clauses (a) through (k), the “Seller’s Indebtedness”). The Seller’s Indebtedness shall include the indebtedness of any other entity (including any partnership in which the Seller is a general partner) to the extent the Seller is liable or could be liable therefor as a result of the Seller’s ownership in, or other relationship with, such other entity; orand
(ix) any and all liabilities or obligations of Seller occurring prior to or after the Closing Date with respect to any Contract, including, without limitation, any Contract pursuant to which any counterparty to such Contract is related to Seller's Qualified Profit Sharing PlanSeller in any way whatsoever, except for any such Contract that is assumed by Buyer and set forth on Schedule 1.2B.
(x) all liabilities and obligations of the Seller described in Section 1.4.1 hereof; and
(xi) all liabilities and obligations arising out of the Employment Contracts, with the exception of any liability expressly assumed by the Buyer under this Agreement in respect of any Transferred Employee, as hereinafter defined, including Buyer’s obligations arising under any of the Employment Contracts to which any Transferred Employee is a party.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azz Inc)
Non-Assumption of Certain Liabilities. Notwithstanding ------------------------------------- any other provision of this Agreement, Buyer shall is not assumeassuming, and shall not be deemed to have assumed or be in any way liable for or subject to or have any obligation for or with respect toassumed, any liabilities or obligations of Seller or VSI of any kind, kind or nature or description whatsoever, except as expressly provided in Section 1.2 hereof (the "Excluded Liabilities")1.3 hereof. Except items for which a reserve is set forth -------------------- in the Audited Financial Statements (but only to the extent of such reserve), anything Anything in Section 1.2 1.3 hereof or elsewhere herein to the contrary notwithstanding and without limiting the generality of the foregoing, it is hereby agreed that Buyer shall is not assumeassuming, and shall not be deemed to have assumed or be in assumed, any way liable for or subject to or liability and shall not have any obligation for or with respect to, to any liability or obligation of the following Excluded LiabilitiesVSI or Seller:
(i) under any and all claims, employee benefit plan of VSI or Seller other than any accrued liabilities or obligations that arise, result from, or relate in any way specifically assumed by Buyer pursuant to any or all employment practices, decisions, actions, or proceedings undertaken by Seller prior to or on the Closing Date in connection with persons employed or seeking to be employed and any and all claims, liabilities or obligations that arise out of, result from, or relate to (a) Employment and Labor Agreements, Employee Policies and Procedures or Plans (as such terms are hereinafter defined), (b) any National Labor Relations Board ("NLRB") proceedings based upon events ---- occurring, conditions existing or claims arising on or prior to the Closing Date, (c) any other matters arising out of the employment of people on or prior to the Closing Date, such as workers' compensation, wage and hour, safety and health, employment discrimination, unfunded pension liability for vested and non-vested employees, and the like, and (d) any liability, including without limitation federal and state income tax liability, by reason of Seller's failure, through any act or omission prior to or on the Closing Date, to comply with the requirements of COBRA (as such term is hereinafter defined) with respect to any "qualified beneficiary" (as defined in COBRA); orSection 1.3 above;
(ii) any and all liabilities or obligations of Seller in respect of (x) any Taxes (as such term is hereinafter defined) sales, use or excise taxes, income taxes, taxes based on or measured by income or franchise taxes attributable to periods or events prior to or ending or occurring on the Closing Date or (y) any Taxessales, use or excise taxes, income taxes, or any other taxes, legal, accounting, brokerage, finder's fees, or other expenses of whatsoever kind or nature incurred by VSI or Seller or any partneraffiliate, affiliatestockholder, director, employee Employee or officer of VSI or Seller as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby; orhereby (other than such taxes, fees and expenses which are accrued in the ordinary course of business prior to Closing);
(iii) any and all liabilities or obligations of Seller arising out of any litigationaction, actioncondition, suit or proceeding based upon an event occurring, a condition existing occurring or a claim arising (x) on or prior to the Closing Date (including, without limitation, the litigation, actions, suits, proceedings and claims listed on Schedule 3.15 hereof), or (y) ------------- after the Closing Date in the case of claims, litigation, actions, suits or proceedings claims in respect of products sold or services provided by VSI or Seller on or prior to the Closing Date and attributable to acts performed or omitted by VSI or Seller on or prior to the Closing Date; or, provided, however, that Buyer shall assume any such liability or obligation to the extent it has been reserved against on the Closing Balance Sheet;
(iv) pursuant to existing loan agreements (other than payment obligations assumed pursuant to Section 1.3 above), and all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which have been shipped by Seller on or prior to the Closing Dateagreements executed in connection therewith; or
(v) all warranties, liabilities or obligations to customers with respect to the repair or replacement of any products which have been manufactured, sold or otherwise provided by Seller on or prior to the Closing Date and which are shipped by Seller on or prior to the Closing Date;
(vi) any and all liabilities or obligations of Seller under any of the Contracts assigned to Buyer hereunder based upon an event occurring, a condition existing or a claim arising (x) on or prior to the Closing Date, or (ii) after the Closing Date in the case of liabilities or obligations thereunder attributable to acts performed or omitted by Seller on or prior to the Closing Date; or
(vii) any and all liabilities or obligations of Seller arising out of or related to this Agreement; or
(viii) any and all liabilities or obligations arising out of or related to matters disclosed on Schedule 3.20 and ------------- any Release (as such term is hereinafter defined) or threat of Release into the environment of a Hazardous Material (as such term is hereinafter defined) attributable to any condition present or circumstanceformer shareholder, know officer, director or unknownEmployee of VSI or Seller (including, existing without limitation, for bonuses, fringe benefits, vacation or occurring at holiday pay, wages or on severance pay, but excluding any real property or premises owned, leased or occupied accrued liabilities specifically assumed by Seller on or prior Buyer pursuant to the Closing Date (hereafter an "Environmental Condition"Section 1.3 above), 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 liability arising in tort (strict or otherwise) resulting from any such Environmental Condition, and (z) any required or voluntary cleanup or full or partial remediation of such Environmental Condition in accordance with the provisions or requirements of any Environmental Law (as such term is hereinafter defined); or
(ix) any and all liabilities or obligations related to Seller's Qualified Profit Sharing Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hydrochem International Inc)
