Assumed Liabilities On the Closing Date, Buyer or the UniSource Designee acquiring the Assets shall deliver to Seller the Assignment and Assumption Agreement pursuant to which Buyer or such UniSource Designee shall assume and agree to discharge when due, without recourse to Seller, in accordance with the respective terms and subject to the respective conditions thereof, all of the Assumed Liabilities. All of the following liabilities and obligations of Seller or Buyer which relate to, or arise by virtue of Seller's or Buyer's ownership of the Assets or operation of the Business (other than Excluded Liabilities) are referred to collectively as the "Assumed Liabilities": (a) all liabilities and obligations of Seller or Buyer arising on or after the Closing Date under the Assigned Agreements, the Real Property Leases, and the Transferable Permits in accordance with the terms thereof, including, without limitation, the Assigned Agreements entered into by Seller (i) prior to the date hereof and (ii) after the date hereof consistent with the terms of this Agreement, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date and are not otherwise included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3 or to the extent the same arise out of any such breach or default or out of any event which after the giving of notice or passage of time or both would constitute a default by Seller; (b) all liabilities and obligations of Seller for accounts payable to the extent included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3; (c) all liabilities and obligations associated with the Assets or the Business in respect of Taxes for which Buyer is liable pursuant to Section 3.4 or 6.10(a) hereof; (d) all liabilities and obligations of Seller or Buyer with respect to the Transferred Employees incurred on or after the Closing Date for which Buyer is responsible pursuant to Section 6.12; (e) all liabilities, responsibilities and obligations of Seller or Buyer arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation is known or unknown, contingent or accrued as of the Closing Date, including but not limited to: (i) costs of compliance (including capital, operating and other costs) relating to any violation or alleged violation of Environmental Laws occurring prior to, on or after the Closing Date, with respect to the ownership of the Assets or operation of the Business; (ii) property damage or natural resource damage (whether such damages were manifested before or after the Closing Date) arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to, or migrating from any Assets prior to, on or after the Closing Date; (iii) any Remediation (whether or not such Remediation commenced before the Closing Date or commences after the Closing Date) of Environmental Conditions or Regulated Substances that are present or have been Released prior to, on or after the Closing Date, at, on, in, adjacent to or migrating from the Assets; (iv) any violations or alleged violations of Environmental Laws occurring on or after the Closing Date with respect to the ownership of any Assets or operation of the Business; (v) any bodily injury or loss of life arising from Environmental Conditions or Releases of Regulated Substances at, on, in, under, adjacent to or migrating from any Asset on or after the Closing Date; (vi) any bodily injury, loss of life, property damage, or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business; and (vii) any Remediation of any Environmental Condition or Release of Regulated Substances arising from the storage, transportation, treatment, disposal, discharge, recycling or Release, at any Off-Site Location, or arising from the arrangement for such activities, on or after the Closing Date, of Regulated Substances generated in connection with the ownership or operation of the Assets; provided, that nothing set forth in this Section 2.3 shall require Buyer to assume any liabilities, responsibilities or obligations that are expressly excluded in Section 2.4; (f) any Tax that may be imposed by any federal, state or local government on the ownership, sale (except as otherwise provided in Section 3.4 or 6.10(a)), operation of the Business or use of the Assets on or after the Closing Date, except for any Income Taxes attributable to the income of Seller; (g) all liabilities and obligations of Seller or Buyer arising on and after the Closing Date under those Orders specifically relating to the Assets or the Business issued by or entered into with any Governmental Authority and listed in Schedule 2.3(g) or imposed on Buyer in any Required Regulatory Approval; (h) customer advances, customer deposits and construction advances, unperformed service obligations, Easement relocation obligations, and engineering and construction required to complete scheduled construction, construction work in progress, and other capital expenditure projects, in each case directly related to the Business and outstanding on or arising after the Closing Date; and (i) actions and proceedings based on conduct, actions, circumstances or conditions arising or occurring on or after the Closing Date, actions and proceedings described in Schedule 2.3(i), actions and proceedings arising from or directly related to any other Assumed Liability, and generic or industry-wide actions and proceedings outstanding on or arising on or after the Closing Date that are applicable to the Business.
Excluded Assets and Liabilities Notwithstanding that this ------------------------------- Agreement relates to the purchase of capital stock from Seller by Purchaser, which results in the Company retaining any and all of its assets and liabilities, it is understood and agreed that Seller shall remove from the Company's premises prior to Closing and/or, as appropriate, remove from the Company's books and records, only those particular assets set forth on Schedule 1.3 hereto (the "EXCLUDED ASSETS"). Further, Seller shall assume any and all liabilities set forth on Schedule 1.3 hereto (the "EXCLUDED LIABILITIES"). Purchaser agrees that it shall cause Penta-Gen and the Company to execute any and all such bills of sale, assignments and/or agreements as may be necessary to transfer title to the Excluded Assets to Seller and to assign and/or transfer the Excluded Liabilities to Seller. The parties hereto further agree that no other assets of the Company, whether tangible or intangible, shall be removed from the Company's premises or from the Company's books and records except in the ordinary course of the Company's Business as provided herein from and after December 31, 1995 through the Closing Date.
Retained Liabilities The Sellers shall retain liability to third parties for the following (the “Retained Liabilities”): (a) liabilities arising from disposal off-site of the Facilities before the Closing Date of Hazardous Materials originating from the Facilities or the JWWTP (including without limitation with respect to the Star Lake Canal site, EPA ID TX0001414341) (the “Seller Off Site Disposal Liability”); (b) fines and penalties imposed by Governmental Entities for violations before the Closing Date of Environmental Laws or Environmental Permits (the “Seller Environmental Fines and Penalties Liability”); (c) liabilities, known or unknown, to the extent arising from the exposure before the Closing Date of any employee, former employee, Independent Contractor or former independent contractor of either Seller or other Person to Hazardous Materials from, at or on the Site or the other Assets (the “Seller Exposure Liability”); (d) liabilities, known or unknown, to the extent arising from the MTBE that was manufactured, sold, processed, used or stored by the Sellers in conducting the Business before the Closing Date, excluding the Product Inventory comprised of MTBE conveyed to the Purchaser at the Closing (the “Seller MTBE Liability”); (e) any obligation under (i) each Assumed Contract, related to the rights under each Assumed Contract assigned to the Purchaser under the Assignment and Assumption Agreement, (ii) each License of either Seller included in the Assets, and (iii) each JWWTP Agreement, related to the rights under each JWWTP Agreement assigned to the Purchaser under the Assignment (JWWTP Agreements); in each case clause (i), (ii) or (iii), required to be performed before the Closing Date; and any indebtedness of either Seller in respect of the Assets, to the extent not taken into account in the determination of Final Net Working Capital; (f) physical or bodily injuries to, or damage to the property of, third parties that occurred before the Closing Date to the extent caused by the physical condition of the Assets; (g) liabilities (including accounts payable) owed by either Seller to the other Seller or any Affiliate of the Sellers on or before the Closing Date in respect of the Business, the Facilities or any other Assets; (h) liabilities for (i) Taxes of either Seller not related to or associated with the Business, the Facilities or the other Assets, (ii) Taxes related to or associated with the Business, the Facilities or the other Assets or the Assumed Liabilities for taxable periods (or portions thereof) ending on or before the Closing Date and (iii) payments under any Tax allocation, sharing or similar agreement (whether oral or written); (i) liabilities for any indebtedness of either Seller or any Affiliate of either Seller with respect to borrowed money, including any interest or penalties accrued thereon; (j) liabilities associated with, related to or arising from any Excluded Asset, excluding, in the case of an Excluded Asset that is the subject of, or owned or operated after the Closing Date pursuant to the terms of, a Commercial Agreement, the Purchaser’s liabilities and obligations with respect to such asset thereunder for matters attributable to operations and transactions during the period after the Closing, it being understood that the respective rights, obligations and liabilities of the Purchaser and the Seller party thereto with respect to such matters will be governed solely by the relevant Commercial Agreement; (k) liabilities arising in connection with any Seller Benefit Plan or ERISA Affiliate Plan; (l) liabilities under any of the CBAs or any other collective bargaining agreement or other labor arrangement, including any grievances, to the extent arising from any act or omission of either Seller or any Affiliate of either Seller before the Closing; (m) liabilities set forth on Schedule 2.5(m), 4.10, or 4.11, in each case to the extent attributable to periods of time before the Closing Date; and (n) all other liabilities (other than those the subject matter of clauses (a) through (m) above or that are the subject of the Sellers’ representations and warranties in Article IV and the Sellers’ covenants in Article VI), known or unknown, to the extent arising under current or prior applicable Law (except that, with respect to those liabilities arising under applicable common law, such liabilities shall be included without regard to whether there has been a change in the common law after the Closing) from the ownership, operation or use of the Business, the Facilities and the Assets, in each case, before the Closing Date, excluding, in the case of an Excluded Asset that is the subject of, or owned or operated after the Closing Date pursuant to the terms of, a Commercial Agreement, the Purchaser’s liabilities and obligations with respect to such asset thereunder for matters attributable to operations and transactions during the period after the Closing, it being understood that the respective rights, obligations and liabilities of the Purchaser and the Seller party thereto with respect to such matters will be governed solely by the relevant Commercial Agreement.
Excluded Liabilities Notwithstanding anything to the contrary contained herein, Purchaser shall not assume any duties, obligations or liabilities of Seller of any kind, whether known, unknown, contingent or otherwise, other than the Transferred Liabilities, including any duty, obligation or liability: (1) not directly relating to the Transferred Assets; (2) attributable to any acts or omissions to act taken or omitted to be taken by or on behalf of Seller (or any of its Affiliates) prior to the Effective Time in violation of any applicable laws, contracts or legal or fiduciary duties; (3) attributable to any actions, causes of action, claims, suits or proceedings or violations of law or regulation attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its affiliates or direct or indirect Subsidiaries); (4) for (i) Taxes relating to the Transferred Assets or the Transferred Liabilities for taxable periods (or portions thereof) ending on or prior to the Closing Date and (ii) Taxes for which Seller is liable pursuant to Section 2.1(h); (5) except as expressly set forth in Section 8.13, relating to the Employees in any respect, including the employment or termination of employment of any Employee, in the case of each Branch Employee relating to any period prior to the time such Branch Employee become employed by Purchaser as contemplated hereby, and relating to the Benefit Plans, ERISA, COBRA or the WARN Act in any respect, whether arising before or after the Effective Time (for avoidance of doubt, Excluded Liabilities include any duty, obligation or liability arising under the Seller Employment Agreements, the Parent Equity Incentive Plans, any contract listed on Schedule 6.8(b)(ii) or any plan listed on Schedule 6.8(b)(iii)); (6) arising from circumstances, events or conditions prior to the Effective Time and not expressly assumed hereunder; and (7) all amounts due and payable to any Affiliate (collectively, the “Excluded Liabilities”). For avoidance of doubt, Excluded Liabilities shall include the Perryville Loan Liabilities, and Purchaser shall not be a successor to Seller with respect to any Perryville Loan Liabilities. This Section 2.1(f) is not intended to enlarge the rights of any third parties relating to the Excluded Liabilities. Nothing contained in this Agreement shall prevent either party hereto from contesting matters relating to the Excluded Liabilities with any third party.
Excluded Assets Notwithstanding anything to the contrary in this Agreement, the Purchased Assets shall not include the following assets (collectively, the “Excluded Assets”): (a) all cash, cash equivalents (including marketable securities and short-term investments), bank accounts and their balances (including related books and records), lockboxes and deposits of, and any rights or interests in, the cash management system of Seller, including uncleared checks and drafts received or deposited for the account of Seller; (b) all rights under any Contracts, including those listed on Schedule 2.02(b), but excluding the Assumed Contracts; (c) all Company Plans and attributable assets of, or relating to, such plans, including all records, Contracts and arrangements associated with such Company Plans; (d) any Intellectual Property of Seller not Related to the Business; (e) Seller’s Organizational Documents and minute and equity ownership books and records having to do with the company organization or existence of Seller and its company seal; (f) all rights, claims, credits, causes of action or rights of set-off that Seller may have arising under this Agreement or as a result of the consummation of the transactions contemplated hereby; (g) any refunds of Taxes for any Pre-Closing Tax Period or for which Seller is liable pursuant to Section 6.12; (h) the Tax Returns and Tax records and reports of Seller other than those that are Purchased Assets; (i) all insurance policies of Seller, including claims thereunder and any claims or benefits in, to or under any express or implied warranties from suppliers of goods or services relating to Inventory sold by Seller prior to Closing; (j) all of Seller’s intercompany account balances with its Affiliates, including those related to the Products; (k) all assets, properties, and interests rights primarily used in or held for use in connection with the operation of Seller’s wound care and urology business; (l) the rights that accrue or will accrue to Seller under this Agreement and the other Transaction Documents; and (m) the other assets of Seller that are identified on Schedule 2.02(m).
Purchased Assets On the terms and subject to the conditions of this Agreement, at the Closing, Seller shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser (or a Subsidiary or Subsidiaries of Purchaser identified to Seller in writing at least three (3) business days before the Closing), and Purchaser shall (or shall cause its applicable Subsidiaries to) purchase and acquire from Seller and its Subsidiaries all of Seller’s and/or its Subsidiaries’ right, title and interest as of the Closing in the following (collectively, the “Purchased Assets”), free and clear of all Liens, other than Permitted Liens: (a) (i) each Business License Contract and (ii) each Contract with customers (including support and services Contracts), partners, distributors or resellers of the Business (other than, for the avoidance of doubt, (x) Contracts solely between Seller and its Subsidiaries or solely between Subsidiaries of Seller and (y) leases of real property) (collectively, (i) and (ii), together with the Contracts designated as Purchased Assets pursuant to Section 2.4(l), such Contracts or portions (to the extent related to the Business) of Contracts, the “Business Contracts”); provided that and for the avoidance of doubt, Business Contracts shall not include any Contract in respect of hosting services provided to the Business; (b) the Transferred Leases; (c) the Transferred Intellectual Property Rights, including (other than with respect to Retained Claims) the right to seek and obtain damages for the past, present or future infringement, misappropriation or other violation of any Transferred Intellectual Property Rights, and the goodwill of the Business appurtenant to such Transferred Intellectual Property Rights; (d) the Transferred Technology, including (other than with respect to Retained Claims) the right to seek and obtain damages for the past, present or future infringement, misappropriation or other violation of any Transferred Technology and the goodwill of the Business appurtenant to such Transferred Technology; provided that Seller shall be permitted to keep copies of any Transferred Technology to the extent it constitutes Shared Transferred Technology subject to the terms and conditions of the Intellectual Property License Agreement; (e) any and all Permits primarily related to the Business (collectively, the “Transferred Permits”); (f) any and all claims, causes of action, defenses and rights of offset or counterclaims (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) at any time to the extent arising out of or related to the Business, the Purchased Assets or the Assumed Liabilities and the right to retain all proceeds and monies therefrom, other than any Retained Claims; (g) any and all rights under Contracts between Seller or one of its Subsidiaries and any Transferred Business Employee to the extent they restrict the Transferred Business Employee from competing with, or soliciting employees, customers, clients, vendors, and other Persons engaged in a business relationship with, the Business; (h) true and complete copies of the Business Books and Records; provided that Seller shall be permitted to keep copies of such Business Books and Records to the extent relating to the Retained Business or the Retained Liabilities, or otherwise to the extent reasonably necessary, and only for so long as required, for Seller’s financial reporting purposes; (i) any and all raw materials, works-in-process, finished goods, supplies and other inventories, including two-factor authentication tokens, to the extent related to, used in or held for use in the Business; (j) all rights under letters of credit, performance bonds, negotiable instruments and other credit support instruments to the extent third parties provide credit support for any Business Contract or any other Purchased Assets pursuant to the foregoing (collectively, the “Transferred Financial Instruments”); (k) any and all prepaid assets and deposits to the extent made or paid in respect of any Purchased Assets described in Section 2.4(i) or any tangible assets (including Tangible Personal Property and Information Technology) that become Purchased Assets pursuant to Section 2.4(l) (the “Transferred Prepaid Assets”); (l) all other assets, Contracts or rights of any kind (including Tangible Personal Property and Information Technology, but excluding owned or leased real property, permits, Intellectual Property Rights (other than any Contracts) and Minority Investments), wherever located, whether personal, or mixed, tangible or intangible, that are owned by Seller or any of its Subsidiaries or to which Seller or any of its Subsidiaries is a party or has a license or other right with respect thereto, and in each case, that are primarily related to or primarily used or held for use in the Business and are not listed on Section 2.5(o) of the Seller Disclosure Letter, and that have been designated as a “Purchased Asset” by Purchaser in writing in its sole discretion prior to the Asset Selection Cut-Off Time; and (m) any and all assets set forth on Section 2.4(m) of the Seller Disclosure Letter.
Purchase and Sale of the Purchased Assets Except as otherwise provided below, upon the terms and subject to the conditions of this Agreement, Buyer agrees to purchase from Seller and the Retained Subsidiaries, and Seller agrees to, and to cause the Retained Subsidiaries to, sell, convey, transfer, assign and deliver, or cause to be sold, conveyed, transferred, assigned and delivered, to Buyer at the Closing, free and clear of any Liens other than Permitted Liens, all of Seller’s and the Retained Subsidiaries’ right, title and interest in, to and under the assets, properties and business, of every kind and description, owned, used or held for use primarily in the conduct of the Business by Seller or any of the Retained Subsidiaries (but, for the avoidance of doubt, excluding any Excluded Assets or assets and properties of any Purchased Subsidiary) (the “Purchased Assets”), including all right, title and interest of Seller and the Retained Subsidiaries in, to and under the following Purchased Assets: (a) the Owned Real Property, together with all buildings, fixtures and improvements erected thereon; (b) all rights under the Leases with respect to the Leased Real Property; (i) all tangible personal property and interests therein, including machinery, equipment, furniture, office equipment, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible property (including all interests in personal property underlying capital leases) located at the Real Property and held for use primarily in the conduct of the Business and (ii) those assets of Seller related primarily to the Business that are located at its Corporate Technology Center facility located in Milwaukee, Wisconsin, which are listed on Schedule 2.02(c); (d) all raw materials, work-in-process, finished goods, supplies and other inventories used or held for use primarily in the conduct of the Business (collectively, the “Inventory”); (e) all rights under all Contracts (other than the Leases) used or held for use primarily in the conduct of the Business, including those listed in Schedule 2.02(e) (the “Purchased Contracts”); (f) all rights, claims, credits, causes of action or rights of set-off against third parties relating to or arising from the Purchased Assets or the Assumed Liabilities, including unliquidated rights under manufacturers’ and vendors’ warranties; (g) all trade accounts receivable and other receivables (collectively, the “Accounts Receivable”) to the extent arising out of the Business; (h) all prepaid assets to the extent arising out of the Business; (i) all Business Intellectual Property Rights other than Business Intellectual Property Rights owned by the Purchased Subsidiaries; (j) all Permits that are necessary to the operation of the Business; and (k) Business Records relating primarily to the Business.
Transfer to Lower Paid Duties Where an employee is transferred to lower paid duties by reason of redundancy the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may at the employer’s option, make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new ordinary time rate for the number of weeks of notice still owing.
CONTRIBUTION IN THE EVENT OF JOINT LIABILITY (a) To the fullest extent permissible under applicable law, if the indemnification, hold harmless and/or exoneration rights provided for in this Agreement are unavailable to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless or exonerating Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee. (b) The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee. (c) The Company hereby agrees to fully indemnify, hold harmless and exonerate Indemnitee from any claims for contribution which may be brought by officers, directors or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee.
Mortgage Payments Received After Transfer Date The amount of any related Monthly Payments received by the Seller after the related Transfer Date shall be forwarded to the Purchaser by overnight mail within one (1) Business Day following the date of receipt. The Seller shall notify the Purchaser of the particulars of the payment, which notification requirement shall be satisfied if the Seller forwards with its payment sufficient information to permit appropriate processing of the payment by the Purchaser. The Seller shall assume full responsibility for the necessary and appropriate legal application of such Monthly Payments received by the Seller after the related Transfer Date with respect to related Mortgage Loans then in foreclosure or bankruptcy; provided, for purposes of this Agreement, necessary and appropriate legal application of such Monthly Payments shall include, but not be limited to, endorsement of a Monthly Payment to the Purchaser with the particulars of the payment such as the account number, dollar amount, date received and any special Mortgagor application instructions and the Seller shall comply with the foregoing requirements with respect to all Monthly Payments received by it after the related Transfer Date.
