Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"): 2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets; 2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby. 2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined); 2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract; 2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law; 2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans. 2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims. 2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller. 2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date. 2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Nm Licensing LLC), Asset Purchase Agreement (Nm Licensing LLC), Asset Purchase Agreement (Nm Licensing LLC)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to Except for the contraryAssumed Liabilities and Purchaser’s pro rata portion of any Shared Liabilities (as hereinafter defined), Buyer does it is expressly understood and agreed that Purchaser shall not assume or agree have any responsibility with respect to payany Liability of the Seller, satisfyregardless of the nature thereof, discharge including any Liabilities arising from or performin connection with, or attributable or related to, the Seller’s operation of the Business or the Seller’s ownership, lease or use of the Acquired Assets, including (i) any such Liability arising from events, facts or circumstances occurring on or prior to the Closing Date, (ii) any such Liability arising out of the employment, terms or conditions of employment, or termination of employment of any Person, or the failure to employ any Person, including, severance, the Worker Adjustment and Retraining Act, income tax withholding, payroll and/or unemployment tax, workers’ compensation, salary or consulting fees, pension, profit-sharing, accrued, earned or unused vacation or sick leave, health insurance or any other employee or employee benefit Liabilities, withdrawal Liability, Liability to the PBGC, Liability under Section 412 of the Code or Section 102 (a)(2) of ERISA or other similar Liability or expense, (iii) any such Liability for any period of time for Taxes, penalties or interest (including without limitation any property or sales Tax Liability, penalty or interest), (iv) any such Liability for expenses, debts or obligations incurred within or outside the Ordinary Course of Business and (v) any such Liability pursuant to Environmental, Health, and will Safety Laws. Purchaser shall not be deemed by virtue of the execution and delivery of this Agreement or become a party to any document delivered at the execution of this Agreement, or Employee Benefit Plan as a result of the consummation any of the transactions contemplated by this Agreement, . All such Liabilities of Seller described above in this Section 2.5 shall be referred to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of herein collectively as the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "“Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby”.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Ruths Hospitality Group, Inc.), Asset Purchase Agreement (Ruths Chris Steak House, Inc.)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to (a) Seller shall retain and pay, satisfy, discharge or perform, and will perform any and all obligations and liabilities not be deemed expressly assumed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed LiabilitiesPurchaser in Section 1.06 above, including any of the following obligations and liabilities or (all such obligations of the Seller (and liabilities, the "Retained Liabilities"):
2.2.1 All (i) liabilities for unpaid Taxes (as defined in Section 2.10);
(ii) all obligations or liabilities of Seller or any predecessor or Affiliate of Seller which that relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and (iii) all kinds (federal, state, local, and foreign) of Seller including, without limitation, any obligations or liabilities for taxes on any borrowed money incurred by Seller whether pre-petition or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. post-petition;
(Federal Insurance Contribution Activ) or employer F.I.C.A., all obligations and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, directly or indirectly, the conduct of Seller's business or ownership or lease of any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, its properties or assets or any other employee benefits, withholding tax liabilities, workers' compensation, properties or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination assets previously used by Seller or arising out of at any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or time prior to the Closing Date., including such of the foregoing as constitute, may constitute or are alleged to constitute a tort, breach of contract, or violation or requirement of any law or governmental regulation;
2.2.10 Any fees (v) any and expenses incurred by all liabilities of Seller under any employee benefit plans, whether formal or informal, whether or not set forth in connection with negotiating, preparing, closingwriting, and carrying out this Agreement and whether covering one person or more than one person, sponsored or maintained by Seller. For the transactions contemplated by this Agreement, including, without limitationpurposes hereof, the fees term "employee benefit plan" includes all plans, funds, pension funds, programs, policies, arrangements, practices, customs and expenses understandings providing benefits of Seller's attorneyseconomic value to any employee, accountantsformer employee, consultants or present or former beneficiary, dependent or assignee of any such employee or former employee other than regular salary, wages or commissions paid substantially concurrently with the performance of the services for which paid. The term "employee benefit plan" includes all employee welfare benefit plans within the meaning of Article 3
(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and brokers.all employee pension benefit plans within the meaning of Article 3
Appears in 3 contracts
Samples: Stock and Note Purchase Agreement (Converse Inc), Asset Purchase Agreement (Converse Inc), Asset Purchase Agreement (Converse Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Seller shall retain and shall pay, perform and discharge when due, the following liabilities, responsibilities and obligations of Seller with respect to the contraryBusiness (collectively, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All (i) Subject to Section 1.5, all trade payables and other payment obligations or liabilities of Seller or any predecessor or Affiliate as of the Closing Date;
(ii) All long-term debt of Seller which and debt of Seller owed to any one or more of its Affiliates;
(iii) Subject to Section 1.5, all taxes and assessments relating to the operation of the Business (other than Transfer Taxes) on or before the Closing Date for the use, ownership or operation of the Transferred Assets on or before the Closing Date;
(iv) All liabilities and obligations arising on or before the Closing Date with respect to Seller's employees that may be hired by Buyer (the "Hired Employees"), including (a) all liabilities, responsibilities and obligations arising on or before the Closing Date relating to collective bargaining agreements or other union contracts, and (b) any such liabilities or obligations that arise after the Closing Date to the extent that such liabilities and obligations relate to facts, circumstances or conditions arising or occurring on or before the Closing Date with respect to the Hired Employees;
(v) All liabilities, responsibilities and obligations arising out of or related to any actions, lawsuits or legal proceedings based on facts, circumstances or conditions arising, existing or occurring on or before the effective time of Closing, regardless of whether known or unknown, asserted or unasserted, as of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this AgreementClosing, tax liabilities of including any and all kinds liability under any claim (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes whether made on or measured by incomebefore the Closing Date) relating to the period ending on or before the effective time of Closing which, liabilities but for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby., would have been covered under any insurance policy of Seller, and all liability associated with workers' compensation claims incurred but not reported as of the effective time of Closing and workers' compensation claims reported as of the Closing Date but not then due or payable, but expressly excluding any such liability, responsibility or obligation for litigation or claims of any Governmental Authority relating to liabilities and obligations arising under Environmental Laws with respect to the Fee Realty included in the Transferred Assets, unless such liabilities, responsibilities and obligations result from the actions or omissions of Buyer constituting breaches of this Agreement;
2.2.3 (vi) All liabilities and obligations for prior period adjustments of revenues from the Business, for any refunds or xxxx credits to ratepayers for overbillings or overearnings occurring or relating to the period prior to the effective time of Closing, and for all toll revenues, settlements, pools, separations studies or similar activities relating to the Exchanges for which Seller is responsible, provided that such liabilities and obligations are asserted within four years of Seller owed to any of Seller or its Affiliates (as hereinafter defined)the Closing Date;
2.2.4 (vii) All liabilities or liabilities, responsibilities and obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations occurring or resulting from the generation, storage, treatment, transportation, handling, disposal, release use or ownership of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions Transferred Assets on or prior to before the Closing Date; and
(viii) All liabilities, responsibilities and obligations with respect to the Excluded Assets.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Citizens Utilities Co), Purchase and Sale Agreement (U S West Inc /De/), Purchase and Sale Agreement (U S West Communications Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement At Closing, the Sellers shall retain all Liabilities for, and the Purchaser shall not have any obligation or Liability concerning (collectively, the “Retained Liabilities”):
i. any Liabilities under the Retained Business Assets and otherwise Liabilities which have arisen or accrued and pertain to a period prior to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerClosing Date, including, without limitation, liabilities the Liability for wagesthe payment of any amounts due and payable or accrued but not yet due or payable prior to the Closing Date under the Contracts and Licenses and Permits; and
ii. the payment of all Taxes and assessments; and
iii. the employment of any Employees of the Seller and/or in connection with the Assets, supplemental unemployment benefitsincluding the payment of any compensation, vacation benefitsaccrued paid time off, severance benefitssick time, retirement benefitspersonal days and any amounts accrued under any Employee benefit or welfare plan and all pension plan Liabilities, COBRA benefitsin each and every case whether pertaining to the period prior to, FAMLA benefitson or after the Closing Date as the Purchaser will not be hiring any Employees and the Seller will continue to employ each and every one of the Employees on terms and conditions as good or better than those in existence as of the date hereof; and
iv. any claim for personal injury or property damage to a Person which is based on any event which occurred at the Real Property prior to the Closing Date and thereafter while the Skylift Sublease or Cypress Lease remain in effect; and
v. any Liabilities (including costs of cleanup, WARN obligations and liabilitiescontainment of other remediation) arising from or in connection with any Environmental Laws, or any other employee benefitsenvironmental, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or health and safety liabilities arising out of or relating to (i) the ownership or operation by any labor matter involving Seller as an employerPerson of any of the facilities, Assets or the Businesses of Sellers, or (ii) any bodily injury (including illness, disability and death, regardless of when any claimsbodily injury occurred, liabilities was incurred or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and obligations deprivation of the use of real property) or other damage of or to any Person or any assets in any way arising from or relating allegedly arising from any hazardous activity conducted by any Person with respect to the Employee Benefit Plans.
2.2.7 Any claimsAssets or the Businesses of Sellers that was present or suspected to be present on or before the Closing Date or thereafter while any Sublease or Subpermit remains in effect, liabilitieson, losseswithin or at the Real Property (or present or suspected to be present on any other property, damagesif such Hazardous Material emanated or allegedly emanated from any property and was present or suspected to be present on the Real Property or the Premises, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, or thereafter while any claims against Sublease or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided SubPermit remains in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, healtheffect), or safety laws (iii) any Hazardous Substance released or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and allegedly released by any other person in relation to Seller Person on or at the Stations, including, without limitation, Premises at any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions time on or prior to the Closing DateDate or thereafter while any Sublease or Sub-permit remains in effect, it being acknowledged that Liability for any Hazardous Materials first appearing after the date of the closing of each of the Skylift Assets and of the Cypress Assets shall be governed by the terms of the Subpermit or Sublease as appropriate.
2.2.10 Any fees vi. The rights and expenses incurred by Seller obligations of the Parties under this Section 2.4 shall survive the Skylift Closing or the Closing, as applicable, for the period set forth in connection with negotiating, preparing, closing, Section 12.1 and carrying subject to the limitations of liability set out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokersin Section 12.5.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (CNL Income Properties Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will shall not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by Closing pursuant to this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability liability, obligation or obligation indebtedness of Seller, whether primary or secondary, direct or indirect, other than the Assumed Liabilities. Seller shall retain all liabilities and obligations of Seller other than the Assumed Liabilities, including any of Liabilities to the following extent specifically provided in Section 1.3 subject to the prorations set forth in Section 9.3 (all such liabilities or and obligations of retained by Seller being referred to herein as the Seller (the "“Retained Liabilities"):”). By way of illustration, and not of limitation, Retained Liabilities include:
2.2.1 (a) All liabilities, obligations or liabilities and commitments of Seller or any predecessor predecessor(s) or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreignAffiliate(s) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. relating to Taxes (Federal Insurance Contribution Actas defined in Article 10) or employer F.I.C.A., and liabilities for income taxes arising as a result of with respect to the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting fromotherwise, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilitiesall periods, or any other employee benefitsportions thereof, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date., subject to the prorations set forth in Section 9.3;
2.2.10 Any (b) All liabilities, obligations and commitments for any legal, accounting, investment banking, brokerage or similar fees and or expenses incurred by Seller in connection with negotiatingwith, preparing, closing, and carrying out this Agreement and resulting from or attributable to the transactions contemplated by this Agreement;
(c) Liabilities, includingobligations and commitments for which Buyer does not expressly assume an obligation or liability as described in Section 1.3;
(d) Liabilities, without limitationobligations and commitments for any borrowed money incurred by Seller or any predecessor(s) or Affiliate(s) of Seller; and
(e) All liabilities, obligations and commitments of Seller, whether known or unknown, disclosed or undisclosed, resulting from, caused by or accruing out of, at any time, directly or indirectly, the fees and expenses conduct of Seller's attorneys, accountants, consultants and brokersits business or ownership or lease of any of its properties or assets or any properties or assets previously used by Seller at any time prior to or on the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Star Buffet Inc), Asset Purchase Agreement (Star Buffet Inc)
Retained Liabilities. Notwithstanding anything contained In no event shall the Buyer assume or incur any liability or obligation under Section 2.3 or otherwise in this -------------------- Agreement respect of any liabilities or obligations of the Sellers or with respect to the contraryBusiness prior to the Closing Date other than the Assumed Liabilities and the Sellers shall remain solely liable for all such liabilities and obligations (the “Retained Liabilities”), Buyer does not assume including the following:
(a) except as is contemplated by Section 2.3(b) above, any product liability or agree similar claim for any injury to payperson or property, satisfyregardless of when made or asserted, discharge which arises out of or performis based upon any express or implied representation, agreement or guarantee made by any FS Tech Entity, or alleged to have been made by any FS Tech Entity, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed or product sold or leased by or on behalf of such FS Tech Entity prior to the Closing Date, including without limitation any claim relating to any product delivered prior to the Closing in connection with the performance of such service and will not be deemed by virtue any claim seeking recovery for direct, incidental, special, or consequential damage, lost revenue or income;
(b) any federal, state, foreign or local income or other Taxes (x) payable with respect to the Business, Assets, properties or operations of the execution Sellers or any member of any Affiliated Group of which either is a member for any period prior to the Closing Date, or (y) assessed against the Sellers and delivery incident to or arising as a consequence of the negotiation or consummation by the Sellers or any member of any Affiliated Group of which either is a member of this Agreement and the transactions contemplated hereby;
(c) any liability or obligation under or in connection with the Excluded Assets;
(d) except as is contemplated by Sections 2.3(c) and (g) above, any document delivered at the execution of this Agreement, liability or obligation arising prior to or as a result of the consummation Closing to any employee(s), agents or independent contractors of the Sellers, whether or not employed by the Buyer after the Closing, or under any compensation or benefit arrangement with respect thereto, including but not limited to liabilities to third parties with respect to any such benefit arrangement. For purposes of this subsection (d), (x) the term “employees” shall include without limitation former employees as well as the family members of current and former employees, and (y) the term “liability or obligation” shall include any monies owed or that may be owed pursuant to any contract, agreement or understanding, written or verbal, between any Seller and any employee or former employee of any Seller;
(e) any liability or obligation arising prior to the Closing Date related to any real estate and/or environmental matters;
(f) any liability or obligation related to any action, suit, Proceeding, demand, assessment or judgment arising from events occurring on or before the Closing Date of any nature whatsoever, including, but not limited to, (A) Case No. 3:10-CV-00146 Xxxx X. Xxxxxx v. Federal Signal Corporation, FS PIPS UK and Federal Signal of Europe BV y CIA, SC filed in the U.S. District Court, Eastern District of Tennessee (Knoxville) on April 5, 2010, and (B) the demand from Global Telecommunications Services, Buenos Aires, Argentina;
(g) any liability or obligation attributable to the infringement of third party intellectual property arising from any service performed or any product used, manufactured or sold by any Seller prior to the Closing Date, including but not limited to such liabilities or obligations arising from or in connection with the Neology Lawsuits;
(h) any liability or obligation of the Sellers arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby and fees and expenses of the Sellers’ counsel, accountants, financial advisors, and other experts;
(i) any liability or obligation of the Sellers arising from or incurred in connection with trade compliance, including but not limited to that related to compliance with applicable customs, export controls and sanctions, country of origin, product marking, anti-boycott, free trade agreement and hazardous materials Laws, regulations, rulings, Permits, licenses and Orders;
(j) any liability or obligation of the Sellers to pay bonuses or other compensation to any current or former employee of the Business as a result of the transactions contemplated by this Agreement, Agreement (including but not limited to have assumed, any liability or to have agreed to pay, satisfy, discharge or perform, obligation under the Sale Bonus Agreements);
(k) any liability or obligation of the Seller other than the Assumed Liabilities, including Sellers with respect to any defined benefit pension plan in which any of the following liabilities current or obligations former employees of the Seller Business currently participate or have at any time participated;
(the "Retained Liabilities"):
2.2.1 All obligations l) any liability or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any obligation of the Excluded AssetsSellers relating to stock-based compensation (including stock options, restricted stock, restricted stock units and performance share units) granted to or held by any current or former employee of the Business;
2.2.2 Other than taxes expressly allocated pursuant (m) any liability or obligation of the Sellers relating to deferred compensation, workers compensation or long-term incentive compensation of each current or former employee of the Business arising on or before the Closing Date;
(n) any other provisions liability or obligation of this Agreement, tax liabilities the Sellers of any and all kinds kind relating to Business Employees who do not become Transferring Employees, whether such liability or obligation arises on, before, or after the Closing Date; or
(federal, state, local, and foreigno) of Seller including, without limitationexcept as is contemplated by Section 2.3(b), any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from the recall, design defect or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, other warranty Claims for any products manufactured or expenses relating to any litigation, proceeding, sold or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or services performed prior to the Closing Date, regardless of when such Claims are made or asserted.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Federal Signal Corp /De/)
Retained Liabilities. Notwithstanding anything contained Except only as otherwise expressly provided in this -------------------- the Assignment and Assumption Agreement with respect to the contraryAssumed Liabilities, Buyer does not neither ITS nor Acquisition Sub assume any duties, responsibilities, debts, liabilities, expenses, accounts payable or agree other obligations of any kind or nature whatsoever of Seller or Parent. Seller or Parent will timely and fully satisfy all such unassumed duties, responsibilities, debts, liabilities, expenses, accounts payable and other obligations (“Retained Liabilities”) when and as they become due. The Retained Liabilities include the following liabilities of Seller or Parent (i) the Existing Litigation; (ii) all Taxes due or payable by Seller or Parent, including all sales and use Taxes and all franchise, income and loan taxes which have been assessed by the Pennsylvania Department of Revenue; (iii) all obligations and liabilities of Seller or Parent under or with respect to payany employee benefits plans, satisfy, discharge or performhealth and welfare plans and programs, and will not be deemed by virtue the 401(k) plan or under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), including for any and all welfare and health care continuation requirements under Section 4980B of the execution Internal Revenue Code of 1986 and delivery Part G of Subtitle B of Title 1 of ERISA (“COBRA”) for all former and existing employees of Seller or Parent and with respect to any M&A Qualified Beneficiary (as defined in the COBRA regulations) as a result of this Agreement or the Acquisition; (iv) without limiting clause (iii) and in addition thereto, all obligations and liabilities whatsoever for any document delivered at the execution of this Agreementemployees, agents, sales or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities personnel of Seller or Parent or who are otherwise connected with Seller or the Business, including all liability or responsibility under or relating to labor or employment agreements or arrangements with hourly, salaried or management personnel or arising under any predecessor laws, rules or Affiliate of Seller which relate to regulations; (v) all liabilities or responsibilities arising from any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities breach or violation of any and all kinds (federallaw, staterule, localregulation or order of any governmental authority or agency or court by Seller, and foreign) of Seller includingParent or any contractor, without limitationemployee, any liabilities for taxes on agent, or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any other personnel of Seller or its Affiliates Parent; (vi) all Excluded Obligations; and (vii) the Seller Vendor Invoices (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of that term is defined in the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities Assignment and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit PlansAssumption Agreement.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Q2 Holdings, Inc.), Asset Purchase Agreement (Q2 Holdings, Inc.)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contraryThe Parties agree that, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than except for the Assumed Liabilities, including Seller shall retain and satisfy when due all liabilities of any kind of Seller, the Company or transactions of the following liabilities Business resulting from any occurrence or obligations set of circumstances or act or omission of Seller, Owners or employees existing prior to or as of the Seller Closing Date (the "Retained Liabilities"):). Retained Liabilities shall include, but are not limited to:
2.2.1 All (a) any liabilities or obligations relating to or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any arising out of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations relating to or arising from the operation of Seller owed the Company and Business including, utility bills, insurance premiums, accounts payable to vendors, commissions and compensation payable to employees, agents, contractors, or distributors, unpaid invoices
(b) any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or (i) Taxes relating to the Employee Benefit Plans.
2.2.7 Any claimsCompany or the Company’s transaction of Business, liabilities, losses, damages, the Purchased Assets or expenses relating to the Assumed Liabilities for any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations taxable period ending on or prior to the Closing Date and (ii) any other Taxes of Seller or Owner for any taxable period prior to the Closing Date, including, without limitationbut not limited to, any claims against or payroll, income, sales and other taxes;
(c) any liabilities for injury or obligations of Seller relating to or death arising out of persons (i) the employment, or damage termination of employment, of any Employee prior to the Closing, or destruction of property, any (ii) workers' compensation claims, and claims of any warranty claims.Employee which relate to events occurring prior to the Closing Date;
2.2.8 Except as provided in Section 3.3, (d) any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from of Seller arising or incurred in connection with the failure to comply with or imposed pursuant to any environmental protectionnegotiation, healthpreparation, or safety laws or regulations or resulting from investigation and performance of this Agreement, the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, other Transaction Documents and liquid the transactions contemplated hereby and gaseous matters by Seller and by any other person in relation to Seller or the Stationsthereby, including, without limitation, fees and expenses of counsel, accountants, consultants, business brokers, advisers and others;
(e) any liability liabilities and obligations for any credit card, or obligation for cleaning up waste disposal sites from other interest bearing or related borrowing, or other liabilities of the Company;
(f) any liabilities and obligations of Seller set forth on Section 2.04(f) of the Disclosure Schedules;
(g) any environmental claims or liabilities, to acts the extent arising out of or omissions relating to facts, circumstances or conditions existing on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying Date or otherwise to the extent arising out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of any actions or omissions of Seller's attorneys
(h) any recall, accountantsdesign defect, consultants and brokers.refunds or similar claims of any products manufactured or sold or any service performed by Seller; and
(i) any product liability or similar claim for injury to a person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller
Appears in 2 contracts
Samples: Asset Purchase Agreement (Concierge Technologies Inc), Asset Purchase Agreement (Concierge Technologies Inc)
Retained Liabilities. Notwithstanding anything contained Seller shall retain full responsibility for any Liabilities (other than Environmental Liabilities, which shall, except as provided in this -------------------- Agreement Sections 2.4(b)(ii)(C) with respect to asbestos claims, 6.1(i), 8.1(a) and 8.1(b), solely be governed by the Environmental Responsibilities Addendum) attributable to the contraryownership, Buyer does not assume operation, maintenance, improvement, use or agree to pay, satisfy, discharge closure of all or perform, and will not be deemed by virtue any portion of the execution and delivery of this Agreement Assets or any document delivered at the execution of this Agreementproduct produced therefrom or thereby on, or as prior to, the Closing Date (the “Pre-Closing Retained Liabilities”), provided that any claim made against Seller under this Section 2.4(b) in respect of Pre-Closing Retained Liabilities shall be void unless such claim is a result Third Party Action and shall have been brought within one (1) year after the Closing Date. In addition, Seller shall retain full responsibility (regardless of the consummation timing of any related claim) for the following Liabilities (“Permanently Retained Liabilities”): (i) any Third Party Actions (which shall include employees of Seller relating to periods on or prior to the Closing) that have been brought as of the transactions contemplated by this Agreement, to have assumedClosing Date, or within one (1) year after the Closing Date with respect to have agreed Pre-Closing Retained Liabilities; and (ii) all Liabilities arising out of, based on, relating to payor associated with (A) any indebtedness, satisfyindenture, discharge mortgage, loan, credit agreement, sale leaseback, or perform, any liability or obligation guaranty of the Seller other than the Assumed Liabilities, including any of the following liabilities foregoing, or obligations security agreement, bond, letter of the Seller (the "Retained Liabilities"):
2.2.1 All obligations credit, pledge or liabilities similar financial agreement of Seller or any predecessor of its Affiliates, (B) any employee benefit, defined benefit or Affiliate of Seller which relate compensation plan, program, agreement or arrangement sponsored, maintained or contributed to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor of its ERISA Affiliates, or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of to which Seller or any predecessor of its ERISA Affiliates was obligated to contribute at any time prior to the Closing, (C) any employee, former employee, independent contractor or Affiliate consultant of or to Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefitsof its Affiliates associated with any existing or future asbestos claims or any labor or employment practice, withholding tax liabilities, workers' compensation, act or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, omission or other claims attributable in whole practice, act or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations omission arising from or relating to an employment or statutory employment relationship to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses extent relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions periods on or prior to the Closing Date, (D) any collective bargaining agreement to which Seller or any of its Affiliates is a party or is bound on or prior to the Closing Date, (E) all Seller Taxes and (F) Seller’s Closing Costs. Pre-Closing Retained Liabilities and Permanently Retained Liabilities shall hereinafter sometimes collectively be referred to as “Retained Liabilities.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.”
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Buckeye Partners, L.P.)
Retained Liabilities. Notwithstanding anything contained Except as specifically set forth in this -------------------- Agreement Section 1.5, Seller retains all Liabilities directly or indirectly arising out of or related to (i) the Retained Assets and (ii) the operation of the Business on and prior to the contraryClosing Date, whether such Liabilities are disclosed on a Schedule hereto or any other document provided to Buyer, known or unknown, disclosed or undisclosed, matured or unmatured, accrued, absolute or contingent on and as of the Closing Date (collectively, the “Retained Liabilities”). Without limiting the generality of the first sentence of this Section 1.4, Buyer does shall not assume or agree become liable for any obligations or Liabilities of Seller not specifically described in Section 1.5, including without limitation, the following Retained Liabilities:
(a) Any Liability for any incorrect, erroneous, improper or false xxxxxxxx or requests for reimbursements made by Seller or overpayments received by Seller under any Medicare, Medicaid, or other government or private payor arrangement in respect of goods or services provided on or prior to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement Closing Date or any document delivered at other violation of Laws or Orders on or prior to the execution Closing Date;
(b) Any Liability for failure by Seller to have complied with the terms of this Agreement, any corporate integrity programs or compliance plans with Regulatory Authorities;
(c) Any Liability arising out of any breach by Seller prior to or on or as a result of the Closing of any provision of the Seller Agreements (as defined herein) or any other contract to which Seller is a party;
(d) Any Liability arising prior to or as a result of the Closing, to any employee, agent, or independent contractor of Seller, whether or not employed by Buyer after the Closing, or under any benefit arrangement with respect thereto;
(e) All wages, commissions, vacation, holiday, workers’ compensation and sick pay obligations of Seller with respect to its employees, including, but not limited to, the employees engaged in the operation of the Business listed on Schedule 2.14(a), accrued through the Closing Date and all bonuses and fringe benefits as to such employees accrued through the Closing Date, and all severance pay obligations of Seller to employees resulting from the consummation of the transactions contemplated by this the Agreement;
(f) Any Liability arising out of any employee benefit plan maintained by or covering employees of Seller, to have assumedincluding, but not limited to, the Business Employees, or to have agreed which Seller has made any contribution or to pay, satisfy, discharge which Seller could be subject to any Liability;
(g) Any Liability for any Taxes of Seller whether disputed or perform, any liability or obligation of the Seller other than the Assumed Liabilitiesnot, including any of the following liabilities Liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate relating to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to transfer, sales, use, excise, realty transfer, controlling interest, recording, documentary stamp and other provisions of this Agreement, tax liabilities of any similar non-income Taxes and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of fees incurred in connection with the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to in this Agreement (“Transfer Taxes”) as set forth in Section 4.9, and including any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of Taxes resulting from any breach by Seller or any predecessor or Affiliate of Seller of any gain on the sale of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out ofAssets pursuant to this Agreement, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating Taxes related to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, Assets or expenses relating the Business with respect to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations Taxable periods ending on or prior to the Closing Date, and in the case of Taxable periods ending after the Closing Date including(but beginning before the Closing Date), without limitationthe portion of such periods ending on or prior to the Closing Date; and
(h) Any Liability related to, arising out of, or in connection with the Parties’ waiver of compliance with any claims against Bulk Transfer Act or any liabilities for injury to similar statute as enacted in any jurisdiction, domestic or death of persons or damage to or destruction of propertyforeign (if applicable), any workers' compensation claims, including the defenses thereof and any warranty claimsreasonable attorneys’ and other professional fees.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 (i) Any liabilities or obligations Liability resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to Seller’s acts or omissions made on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Pediatric Services of America Inc)
Retained Liabilities. Notwithstanding anything contained The Assumed Liabilities shall specifically exclude any and all other Liabilities (the “Retained Liabilities”), including:
(a) all Liabilities in this -------------------- Agreement connection with, resulting from, or arising out of, directly or indirectly, the ownership, operation or control of the Acquired Assets or the Business prior to the contraryClosing Date;
(b) all interest and fees accrued on the Warehouse Line with regard to periods, Buyer does or portions of periods, ending before the Closing Date;
(c) all amounts payable by Transferor to an Affiliate of Transferor;
(d) all Liabilities (regardless of whether the Liability arises prior to, on or after the Closing Date) relating to (i) Benefit Plans, (ii) Business Employees who are not assume Hired Business Employees, or agree (iii) Hired Business Employees with regard to payservices performed before the Closing Date;
(e) all legal, satisfyaccounting, discharge brokerage, finders fees, if any, or perform, and will not be deemed by virtue other expenses of the execution and delivery of Transferor in connection with this Agreement or the consummation of the transactions contemplated hereby;
(f) any document delivered at Liability (A) for any Taxes of Transferor or its Affiliates with respect to any taxable period, regardless of whether that taxable period ends before, on or after the execution of this AgreementClosing Date, or as a result of (B) for any Transfer Taxes resulting from or attributable to the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller Agreement other than the Assumed Liabilitiesthose Transfer Taxes for which Acquiror is responsible in accordance with Section 10.01;
(g) any Liability, including any of the following liabilities or obligations of obligation to give notice, under the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this AgreementWorker Adjustment and Retraining Notification Act, tax liabilities of any and all kinds (federalif any, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release layoffs of hazardous substances, solid wastes, and liquid and gaseous matters employees by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or Transferor prior to the Closing Date;
(h) all Liabilities in respect of the Excluded Assets; and
(i) all Liabilities set forth on Schedule 3.02(i).
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 2 contracts
Samples: Acquisition Agreement (Municipal Mortgage & Equity LLC), Acquisition Agreement (Municipal Mortgage & Equity LLC)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All The liabilities and obligations which shall be retained by the Company (the “Retained Liabilities”) shall consist of Seller or any predecessor or Affiliate all liabilities of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerthe Company other than Assumed Liabilities, including, without limitation, the following:
(a) all liabilities of the Company relating to indebtedness for wagesborrowed money whether or not such liabilities are reflected on the unaudited balance sheet of the Company as of March 31, supplemental unemployment benefits2006, vacation benefitsincluded in the Financial Statements (as defined herein);
(b) all liabilities of the Company or the Sole Member resulting from, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from constituting or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation a breach of any nature arising out of the operations representations, warranties, covenants or agreements of the Stations on Company or prior the Sole Member under this Agreement;
(c) all of the Company’s trade and accounts payable (billed and unbilled);
(d) subject to the Closing Date includingSection 6.6(a), without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued all liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation Company for cleaning up waste disposal sites from or related to acts or omissions Taxes (as hereinafter defined) incurred on or prior to the Closing Date.
2.2.10 Any fees , including without limitation, with respect to the operations or income of the Company on or prior to the Closing Date, all sales, use and expenses incurred by Seller in connection with negotiating, preparing, closingwithholding Taxes, and carrying out this Agreement any gain or income from the sale of the Purchased Assets and the transactions contemplated herein;
(e) all liabilities for all environmental, ecological, health, safety, products liability (except as specifically referred to herein) or other claims pertaining to the Company’s business or the Purchased Assets which relate to time periods or events occurring on or prior to the Closing Date;
(f) all liabilities of the Company arising in connection with its operations unrelated to the Company’s Business and all liabilities (including any liability pursuant to any claim, litigation or proceeding) in connection with the operation of the Company’s Business prior to the Closing except as otherwise specifically provided herein;
(g) any liability of the Company based on its tortious or illegal conduct;
(h) any liability or obligation incurred by the Company in connection with the negotiation, execution or performance of this Agreement, including, without limitation, the all legal, accounting, brokers’, finders’ and other professional fees and expenses expenses;
(i) all liabilities incurred by the Company after the Closing Date; and
(j) all liabilities or obligations associated with the employees, consultants, contractors or agents of Seller's attorneysthe Company, accountantsincluding but not limited to accrued vacation for all employees, consultants and brokersconsultants, contractors or agents, any liability or obligation under or with respect to any employment, consulting, independent contractor, agency or similar agreement any plan, unemployment or workers’ compensation laws, sales commissions, or any liability or obligation arising from the termination of any employee, consultant, contractor or agent by the Company or any decision by the Buyer not to offer employment or continued service to any employee, consultant, contractor or agent of the Company.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Marchex Inc), Asset Purchase Agreement (Marchex Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All The liabilities and obligations which shall be retained by the Company (the “Retained Liabilities”) shall consist of Seller or any predecessor or Affiliate all liabilities of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerthe Company other than Assumed Liabilities, including, without limitation, the following:
(a) all liabilities of the Company relating to indebtedness for borrowed money whether or not such liabilities are reflected on the unaudited balance sheet of the Company as of March 31, 2006, included in the Financial Statements (as defined herein);
(b) all liabilities of the Company or the Equityholders resulting from, constituting or relating to a breach of any of the representations, warranties, covenants or agreements of the Company or the Equityholders under this Agreement;
(c) all of the Company’s trade and accounts payable (billed and unbilled);
(d) all liabilities of the Company for Taxes (as hereinafter defined), including without limitation, with respect to the operations or income of the Company through consummation of the Closing, all sales, use and withholding Taxes, and any gain or income from the sale of the Purchased Assets and the transactions contemplated herein;
(e) all liabilities for wagesall environmental, supplemental unemployment benefitsecological, vacation benefitshealth, severance benefitssafety, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, products liability (except as specifically referred to herein) or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating pertaining to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller Company’s business or the Stations, including, without limitation, any liability Purchased Assets which relate to time periods or obligation for cleaning up waste disposal sites from or related to acts or omissions events occurring on or prior to the Closing Date.;
2.2.10 Any fees and expenses incurred by Seller (f) all liabilities of the Company arising in connection with negotiatingits operations unrelated to the Company’s Business and all liabilities (including any liability pursuant to any claim, preparinglitigation or proceeding) in connection with the operation of the Company’s Business prior to the Closing except as otherwise specifically provided herein;
(g) any liability of the Company based on its tortious or illegal conduct;
(h) any liability or obligation incurred by the Company in connection with the negotiation, closing, and carrying out this Agreement and the transactions contemplated by execution or performance of this Agreement, including, without limitation, the all legal, accounting, brokers’, finders’ and other professional fees and expenses expenses;
(i) all liabilities incurred by the Company after the Closing Date; and
(j) all liabilities or obligations associated with the employees, consultants, contractors or agents of Seller's attorneysthe Company, accountantsincluding but not limited to accrued vacation for all employees, consultants and brokersconsultants, contractors or agents, any liability or obligation under or with respect to any employment, consulting, independent contractor, agency or similar agreement any plan, unemployment or workers’ compensation laws, sales commissions, or any liability or obligation arising from the termination of any employee, consultant, contractor or agent by the Company or any decision by the Buyer not to offer employment or continued service to any employee, consultant, contractor or agent of the Company.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Marchex Inc), Asset Purchase Agreement (Marchex Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrarySellers shall retain responsibility for performing when due, and Buyer does shall not assume or agree have any responsibility for, all liabilities of Sellers related to pay, satisfy, discharge or perform, the Business and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller Purchased Assets other than the Assumed Liabilities, including any (i) the ownership and operation of the following liabilities or obligations of Business and the Seller Purchased Assets prior to the Closing; (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of ii) the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities ; (iii) the termination of any and all kinds employees of Sellers who are not Transferred Employees; (federaliv) Transferred Employees who do not report for work with Buyer upon the Closing; (v) certain indebtedness of the Sellers set forth on Schedule 1.4; (vi) any refund, state, localrecoupment, and foreignany penalty obligations for services rendered and billed by the Business or its employees prior to Closing, regardless of when such obligations are discovered or due; and (vii) any liability relating to or arising out of Seller any employment action or practice in connection with Seller’s employment or termination of employment of any persons currently or formerly employed or seeking to be employed by the Sellers, including liabilities based upon breach of employment contract, employment discrimination, wrongful termination, wage and hour compliance (including, without limitation, any liabilities for taxes on employee classification, overtime and minimum wage obligations), independent contractor classification, health and safety requirements, immigration and/or worker authorization requirements, disability accommodation and leave laws, workers’ compensation, constructive termination, failure to give reasonable notice or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result pay in lieu of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefitsnotice, severance benefitsor termination pay or the Consolidated Omnibus Budget Reconciliation Act, retirement benefitsas amended, COBRA benefitsthe Employee Retirement Income Security Act of 1974, FAMLA benefitsas amended, WARN obligations and liabilitiesthe Worker Adjustment Retraining Notification Act of 1988, as amended, the Fair Labor Standards Act, as amended, or the National Labor Relations Act, as amended, or any other employee benefitsequivalent state, withholding tax liabilitiesmunicipal, workers' compensationcounty, or unemployment compensation benefits or premiumslocal, hospitalization or medical claims, occupational disease or disability claims, foreign or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating Applicable Law. Notwithstanding anything to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitationcontrary contained herein, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed amounts that come due pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from this Section 1.4(a)(vi) or related to acts or omissions the liabilities listed on or Schedule 2.12(b), if any, shall be offset as set forth in Section 7.6(e) subject to Sellers’ and Owner’s prior to the Closing Datewritten consent.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and (a) For the transactions contemplated by purposes of this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokersliabilities described in Section 1.4(a) shall collectively be the “Retained Liabilities”.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Nobilis Health Corp.), Asset Purchase Agreement (Nobilis Health Corp.)
Retained Liabilities. Notwithstanding anything contained Section 1.3, any other provision in this -------------------- Agreement or any other writing to the contrary, Buyer does the Purchaser is assuming only the Assumed Liabilities and is not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue assuming any other Liability of the execution Company (or any predecessor of the Company or any prior owner of all or part of its businesses and delivery assets) of whatever nature, whether presently in existence or arising hereafter. All such other Liabilities shall be retained by and remain Liabilities of the Company (all such Liabilities not being assumed being herein referred to as the “Retained Liabilities”). Notwithstanding any provision in this Agreement or any document delivered at other writing to the execution contrary, Retained Liabilities include:
(a) any indebtedness or obligation for borrowed money of this Agreementthe Company and its Affiliates;
(b) except for the Liabilities explicitly set forth on Exhibit 1.2, any Liability relating to employee benefits, compensation arrangements or employment or severance agreements existing on or prior to the Closing Date, including, without limitation, any key employee retention program or similar program adopted by the Company and/or approved by the Bankruptcy Court including, without limitation, with respect to the benefits listed on Exhibit 1.4, or as a result any of the Company’s Plans (including, but not limited to, any Title IV Plan), including, without limitation, those Plans specifically listed on Schedule 2.9(a) and any Employee Obligations;
(c) any Liabilities for Taxes (including Taxes resulting from the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising except as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter definedprovided in Section 8.3(b));
2.2.4 All liabilities or obligations (d) any Liability arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, relating to any violation of any law;
2.2.6 Any claims, liabilitiesrule, and obligations of Seller as an employerregulation, includingjudgment, without limitationinjunction, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, order or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller decree occurring or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, any event or expenses relating to any litigation, proceeding, condition occurring or investigation of any nature arising out of the operations of the Stations on existing at or prior to the Closing Date including, without limitation, Closing;
(e) any claims against or any liabilities Liability for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees (i) all costs and expenses incurred by Seller or owed in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitationadministration of the Chapter 11 Case (including the U.S. Trustee fees, the fees and expenses of Seller's attorneys, accountants, financial advisors, consultants and brokersother professionals retained by the Company, the creditors’ committee, the post-petition lenders or the pre-petition (the “Chapter 11 Professionals”) lenders incurred or owed in connection with the administration of the Chapter 11 Case); (ii) all costs and expenses of the Company incurred in connection with the negotiation, execution and consummation of the transactions contemplated under this Agreement; and (iii) post-petition accounts payable; and
(f) the obligation to pay the Breakup Fee as defined in that certain Purchase Agreement, dated as of February 12, 2005, by and among the Company, GZ Holding Corp. and GMM Trust.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Gadzooks Inc)
Retained Liabilities. Notwithstanding anything contained Except for the Assumed Liabilities, Seller shall continue to bear sole responsibility and liability for all other obligations, liabilities, commitments, debts or guarantees of the Business, Seller or any subsidiary or affiliate of Seller (collectively referred to as the “Retained Liabilities”). The Retained Liabilities shall include, but not be limited to, any and all liabilities with respect to any of the following, whether the claim is made or asserted before or after the Closing:
(a) any liabilities or obligations of Seller to its creditors not paid prior to or at the Closing, including, without limitation the obligations arising under that certain Promissory Note dated as of August 13, 2010, maturing August 13, 2011 made by Seller in this -------------------- Agreement favor of First Bank of Commerce in the maximum principal sum of $800,000.00 (the “Bank”), and any and all obligations and instruments relating thereto (collectively, the “Existing Bank Debt”);
(b) any liabilities or obligations of Seller with respect to any transactions of Seller occurring after the Closing;
(c) any sales or income tax or other liabilities or obligations of Seller incurred in connection with Seller's operation of the Business or the Assets;
(d) any liabilities or obligations of Seller or any contingent liabilities or obligation of Seller arising under or in connection with the Excluded Assets;
(e) any liabilities or obligations for a product liability or similar claim for defective manufacture or injury to person or property, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by Seller, or alleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed or product designed, engineered, manufactured, produced, sold or leased by or on behalf of Seller on or prior to the contrary, Buyer does not assume Closing;
(f) any liabilities or agree obligations arising prior to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation Closing to any employees, agents or independent contractors of Seller, whether or not employed by Buyer after the transactions contemplated by this Agreement, to have assumedClosing, or to have agreed to pay, satisfy, discharge or perform, under any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assetsbenefit arrangement with respect thereto;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of (g) any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller arising or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiatingthe negotiation, preparing, closing, preparation and carrying out execution of this Agreement and the transactions contemplated by this Agreement, including, without limitation, the hereby and fees and expenses of counsel, accountants and other experts;
(h) any liabilities or obligations with respect to intellectual property infringement (including patent, copyright and trademark infringement), employee injury, occupational disease or disablement, worker’s compensation, regulatory, labor, employment, unemployment, tax and negligence resulting from, relating to or arising out of Seller's attorneysconduct;
(i) any liabilities or obligations with respect to all present or future litigation, accountantsproceedings, consultants claims or investigations based on Seller's conduct prior to the Closing Date;
(j) any liabilities or obligations associated with or relating to any salary or benefits owing to any employee of Seller or the Business prior to the Closing Date;
(k) any liabilities or obligations to indemnify any person, including, but not limited to any present or past director, officer, employee, partner or agent of Seller whether such indemnification is for judgments, damages (as that term is hereinafter defined), penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise and brokerswhether such indemnification is pursuant to any statute, by-law, agreement or otherwise; and
(l) any liabilities or obligations of Seller for breach or failure to perform any of the covenants, representations and warranties or agreements contained in, or made pursuant to, this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Qsgi Inc.), Asset Purchase Agreement (Qsgi Inc.)
Retained Liabilities. Notwithstanding anything contained in any provision of this -------------------- Agreement to the contrary, Buyer the Company does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller Member (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor owner of all or Affiliate of Seller which relate to any part of the Excluded Contributed Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any whatever nature whether presently in existence or arising hereafter (it being understood that the Company shall be responsible for all liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller the ownership or any predecessor or Affiliate of Seller of any use of the terms Contributed Assets on or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All after the date hereof) and all such liabilities and obligations have been retained by and remain liabilities of Seller or any predecessor or Affiliate of Seller resulting fromMember (collectively, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerthe “Retained Liabilities”), including:
(a) all debts, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and or obligations for any Tax arising from or relating with respect to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating Contributed Assets (other than Taxes related to any litigation, proceeding, or investigation of any nature arising out the transfer and contribution of the operations of the Stations Contributed Assets as provided in Section 2.7) on or prior to the Closing Date includingdate hereof;
(b) all debts, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with specifically arising out of or imposed pursuant relating to any environmental protectionof the Retained Assets;
(c) all debts, healthclaims, liabilities or safety laws obligations related in any way to any employees of Member;
(d) all debts, claims, liabilities or regulations obligations related in any way to any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or resulting from other similar plan, arrangement, payroll practice, agreement or understanding (whether or not written or legally binding and whether or not subject to ERISA), including any “employee pension benefit plan” as defined in Section 3(2) of ERISA and any “employee welfare benefit plan” as defined in Section 3(1) of ERISA, of Member or any ERISA Affiliate of Member; and
(e) liabilities under Environmental Laws, including those arising out of the generationtreatment, storage, treatment, transportation, handling, disposal, release recycling, reuse or arrangements for disposal (whether at the Real Property or other locations) of hazardous substanceswastes and Hazardous Materials generated, solid wastesused, handled or transported by or on behalf of Member in connection with the use and liquid and gaseous matters by Seller and by any other person in relation to Seller or occupancy of the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions Real Property on or prior to the Closing Datedate hereof.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 2 contracts
Samples: Joint Venture Agreement (Constellation Brands, Inc.), Joint Venture Agreement (Huneeus Vintners LLC)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to The liabilities and obligations which shall be retained by the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller Company (the "Retained Liabilities"):
2.2.1 All obligations or ) shall consist of all liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other Company other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerAssumed Liabilities, including, without limitation, the following:
(a) all liabilities of the Company relating to indebtedness for wagesborrowed money;
(b) all liabilities of the Company resulting from, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from constituting or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation a breach of any nature arising out of the operations representations, warranties, covenants or agreements of the Stations Company under this Agreement in accordance with the indemnification provisions of this Agreement;
(c) all liabilities of the Company for federal, state, local or foreign Taxes, including Taxes incurred in respect of or measured by the income of the Company earned on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or realized prior to the Closing Date.
2.2.10 Any fees , including any gain and expenses income from the sale of the Assets and other transactions contemplated herein, excluding those incurred by Seller Buyer in connection with negotiatingthis transaction;
(d) all liabilities for all environmental, preparingecological, closinghealth or safety claims to the extent arising out of the operation of the Business or the Purchased Assets by the Company on or before the Closing Date;
(e) all liabilities of the Company arising in connection with its operations unrelated to the Business except as otherwise specifically provided herein or in Schedule 2.3;
(f) any liability of the Company based on its tortious or illegal conduct;
(g) any liability or obligation incurred by the Company in connection with the negotiation, and carrying out this Agreement and the transactions contemplated by execution or performance of this Agreement, including, without limitation, the all legal, accounting, brokers', finders' and other professional fees and expenses other than through Buyer's breach of Sellerthis Agreement;
(h) all liabilities incurred by the Company after the Closing Date other than through Buyer's attorneysbreach of this Agreement (except to the extent such liability is specifically assumed by Buyer); and
(i) all liabilities or obligations associated with the Business Employees (as defined in Section 5.5(b)(i)), accountantsincluding but not limited to any liability or obligation under or with respect to any collective bargaining agreement, consultants employment agreement, any Plan (as defined in Section 3.19), unemployment or workers' compensation laws, sales commissions (other than on orders shipped and brokersbilled after the Closing Date) unless specifically provided for elsewhere in this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Boca Research Inc), Asset Purchase Agreement (Oneworld Systems Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to Each of the contraryParties acknowledges and agrees that Purchaser is not assuming or becoming liable for (and Purchaser hereby expressly disclaims any liability for) any Liability of the Seller Parties or any of their respective Affiliates or Representatives, Buyer does not assume however or agree to whenever arising, excepting only the Assumed Liabilities. All such unassumed Liabilities (the “Retained Liabilities”) are being retained by the applicable Seller Party, and the Seller shall, and the Owner shall cause the Seller to, pay, satisfy, perform or otherwise discharge all Retained Liabilities as they become due. Retained Liabilities include the following:
(a) all Liabilities of any Seller Party under the Transaction Documents;
(b) all Liabilities of any Seller Party for expenses or perform, and will not be deemed by virtue fees incident to or arising out of the execution and delivery negotiation, preparation, approval or authorization of this Agreement or any document delivered at the execution of this Agreementother Transaction Document, or the consummation (or preparation for the consummation) of the transactions contemplated hereby or thereby (including all attorneys’ and accountants’ fees and brokerage fees) (collectively, the “Third Party Transaction Expenses”);
(c) except as provided for in Section 1.3(e), all Liabilities for (i) any federal, state, local or other Taxes of any Seller Party for Taxes (including Taxes which are imposed on or measured by the revenue, income or profits of the Seller for any taxable period), (ii) any Taxes imposed on any Seller Party as a result of the transactions contemplated hereby, (iii) any Taxes related to the Purchased Assets or the Business that were incurred in or that are attributable to any taxable period ending on or before the Closing Date (“Pre-Closing Tax Period”), (iv) Taxes resulting from being a member of an affiliated group filing or filing an affiliated, consolidated combined or unitary Tax Return, and (v) Taxes of any Person under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise;
(d) other than Liabilities arising out of any Warranty Work and subject to Section 6.14, all Liabilities to customers or third parties with respect to services performed by a Seller Party prior to the Closing or products sold, installed or delivered by a Seller Party or its Representative prior to the Closing (except to the extent such Liabilities are covered by manufacturer or similar warranties that actually inure to the benefit of Purchaser), without regard to (i) the basis or theory of claim (including negligence, tort, breach of express or implied warranty, failure to warn, test, inspect or instruct, infringement, fraud or otherwise), (ii) the nature of the damages sought (property damage, economic loss, personal injury, wrongful death or other), or (iii) whether the claim arose or is asserted before or after the Closing;
(e) all Liabilities arising out of any labor or related agreement, or any employment or labor relationship, between the Seller and any of its respective Employees (regardless of when first known or asserted), including (i) claims for benefits, compensation (including salary, wages or commissions), bonuses or expense reimbursements accruing or arising on or prior to the Closing Date (including any retention or transaction bonuses resulting from the consummation of the transactions contemplated by this Agreement), (ii) all accrued but unused vacation or other paid-time off accruing or arising on or prior to have assumedthe Closing Date, (iii) all Liabilities relating to any grievance or claim of the Employee, any Employee Plan or other employee benefit plan sponsored or maintained by the Seller or its Affiliates at any time or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of which the Seller other than the Assumed Liabilitiesor its Affiliates has made contributions or has a liability, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities all severance claims of any and all kinds Employee (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on including such claims relating to or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of resulting from the consummation of the transactions contemplated hereby.
2.2.3 All liabilities ), all workers’ compensation or obligations of Seller owed to any of Seller or its Affiliates Equal Employment Opportunity Commission (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any “EEOC”) claims, liabilitiesdemands, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, investigations or proceedings or any other employee benefitsclaim for compensation due from the Seller to an Employee, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses (iv) all Liabilities relating to any litigation, proceeding, or investigation of independent contractors and related misclassification issues under any nature arising out of the operations of the Stations on or Applicable Law occurring prior to the Closing Date includingClosing, without limitationbut whether arising before or after Closing, (v) any claims against violations of any Labor Laws occurring prior to the Closing, including the failure of any Continuing Employee to be properly authorized to work in the United States as of Closing, and (vi) all Liabilities with respect to any Employee who is not a Continuing Employee;
(f) all Liabilities arising by reason of any violation or alleged violation by a Seller Party of any Applicable Law or any liabilities for injury to or death requirement of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions Governmental Authority occurring on or prior to the Closing Date.;
2.2.10 Any fees and expenses incurred by Seller (g) all Liabilities arising under Assumed Contracts to the extent such Liabilities are not Assumed Liabilities or arise out of the consummation of the Closing, any failure to perform, improper performance, breach of warranty or other breach, default or violation occurring on or prior to the Closing Date;
(h) all Liabilities relating to any legal action, litigation, proceeding or claim arising out of or in connection with negotiatingthe Business or any other conduct of a Seller Party or any Employees of the Seller or other Representatives on or prior to the Closing Date, preparingincluding claims for indemnification, closingadvancement, or reimbursement by Employees and other Representatives and any claims or Liabilities in respect of any self-insurance or captive insurance arrangements;
(i) all Liabilities arising under Environmental Law and relating to or arising out of any acts or omissions of a Seller Party or, on or prior to the Closing Date, the Business or the Purchased Assets, including any such Liability relating to or arising from (i) any Real Property or any other real property presently or formerly owned, operated or leased by the Seller, (ii) the off-site transportation, disposal or arranging for the off-site disposal of any Hazardous Materials, (iii) the Release of Hazardous Materials in, at, on, under, from or emanating from the Real Property or any other real property presently or formerly owned, operated or leased by the Seller, (iv) the sale or distribution of any products containing Hazardous Materials or (v) the actual or alleged violation of any Environmental Law;
(j) all Liabilities of any Person arising out of or relating to the distribution, allocation and payment of any part of the Purchase Price in the manner directed by the Seller;
(k) all Liabilities for which Purchaser may otherwise become liable arising out of the consummation of the Closing, as a result of any failure to comply with any bulk sales or bulk transfer or Tax clearance laws or laws of similar import;
(l) all Indebtedness of the Seller, and carrying out this Agreement and any Lien related thereto, given in connection therewith, or arising therefrom;
(m) all retrospective premium adjustment, audit premium adjustment, experience-based liability, loss sharing cost adjustment or self-insured retention risk (including liability to reimburse Employees for health services rendered prior to Closing) with respect to any Seller Insurance Policies;
(n) the transactions contemplated prorated share of any ad valorem Taxes with respect to the Purchased Assets for Pre-Closing Tax Periods as described in Section 2.5;
(o) any obligation or liability related to the Employee Plans or any other employee benefit plan, program, policy, agreement or arrangement presently or formerly sponsored, maintained, or contributed to by this Agreement, including, without limitation, the fees and expenses Seller or an ERISA Affiliate of Seller's attorneys, accountants, consultants and brokersor with respect to which Seller or any such ERISA Affiliate has any liability or has ever had an obligation to contribute; and
(p) all Liabilities in respect of any of the Excluded Assets.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does shall not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue shall have no liability for any Liability of the execution and delivery of this Agreement Product Line business or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities Liability of Seller or any predecessor or Affiliate of Seller which relate to any of except for the Excluded Assets;
2.2.2 Other than taxes expressly allocated liabilities assumed pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller includingSection 2.3. Specifically, without limitation, Buyer shall not assume any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result Liability of the transfer Product Line business which arises out of operation of the Station Assets or otherwise by virtue of Product Line business prior to the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerClosing Date, including, without limitation, liabilities for wagesthe following Liabilities (the “Retained Liabilities”):
(a) any Liability under any employee benefit plan or relating to payroll, supplemental vacation, sick leave, workers’ compensation, unemployment benefits, vacation benefitsprofit-sharing plans, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, health care plans or other benefits of any kind of Seller’s employees or former employees;
(b) all product liability claims attributable in whole or in part to employment or termination by Seller occurring or arising out of any labor matter involving products manufactured or sold by Seller as an employer, and any claims, liabilities and obligations arising from or relating prior to the Employee Benefit Plans.Closing Date;
2.2.7 Any claims, liabilities, losses, damages, (c) all obligations under warranty claims of the Product Line business occurring or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or products sold by Seller prior to the Closing Date includingin excess of $100,000 during the twelve (12) month period following the Closing Date;
(d) any Liability resulting from, without limitationarising out of, any claims against or any liabilities for injury to or death of persons or damage to or destruction of propertyrelating to, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, healthnature of, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and caused by any other person in relation breach of contract, breach of warranty, tort, infringement, violation of Applicable Law, or environmental matter for the period of time prior to the Closing Date;
(e) any Liability of Seller for Taxes incurred, accrued or the Stations, including, without limitation, otherwise arising during any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions tax period ending on or prior to the Closing Date., whether directly or pursuant to any contract or agreement between any Seller and a third party;
2.2.10 Any (f) any obligation of Seller to indemnify any Person by reason of the fact that such person was a director, officer, employee, or agent of Seller or was serving at the request of any such entity as a partner, member, trustee, director, officer, employee, or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses (including attorneys’ fees), or otherwise, and whether such indemnification is pursuant to any statute, charter document, by-law, agreement, or otherwise);
(g) any Liability of Seller for costs and expenses (including Taxes and legal costs and expenses and fees and expenses commissions payable to investment bankers and other advisors) incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreementhereby;
(h) any Liability under any employment agreements, includingbenefit arrangements and severance plans to Seller’s employees or former employees; and
(i) any Liability for trade accounts payable, without limitation, accrued expenses or debt obligations of Seller related to the fees and expenses of Seller's attorneys, accountants, consultants and brokersProduct Line or otherwise.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cycle Country Accessories Corp)
Retained Liabilities. Notwithstanding anything contained Except as otherwise set forth in this -------------------- Agreement Section 2 and subject to the contraryprovisions of Section 15, Buyer does shall not assume any liabilities or obligations of any Seller or Owner of any type or description. Without limiting the foregoing, the Parties expressly acknowledge and agree to pay, satisfy, discharge or performthat Sellers and Owners shall retain, and will Buyer shall not assume, or be deemed by virtue responsible for, or liable with respect to, any liabilities or obligations of Sellers, or otherwise relating to the Business or any present or former owner or operator thereof, whether or not, associated with, or arising from, any of the execution Acquired Assets or the Business, whether fixed, contingent, or otherwise, known or unknown (collectively referred to hereinafter as “Retained Liabilities”) including without limitation:
(a) all liabilities and delivery obligations relating to, based in whole or in part on events or conditions occurring or existing in connection with, or arising out of, the Business as operated prior to the Closing, or the ownership, possession, use, operation or sale or other disposition of this Agreement the Acquired Assets (or any document delivered other assets, properties, rights or interests associated, at any time prior to the execution of this AgreementClosing with the Business) prior to the Closing, or as which are not Assumed Liabilities including without limitation a result pro rata portion of the consummation operating expenses including rent, utilities, etc.;
(b) accounts payable and accrued expenses as of the transactions contemplated Closing Date, other than Assumed Advertising Commitments, provided that any amounts in excess of the amount of Advertising Fund Deposits delivered to Buyer at Closing shall be Retained Liabilities;
(c) liabilities or obligations of any Seller, Owner or Excluded Entity for indebtedness owed to a third party (including any guaranty obligations to GE Capital related to the real estate owned by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or performthe Excluded Entities);
(d) with the exception of the Standby Leases, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate relating to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to (e) any Taxes, customs duties or other provisions of this Agreementfees, tax liabilities assessments or charges of any kind whatsoever, together with any interest and all kinds any penalties, additions to tax or additional amounts imposed by any taxing authority (federal, state, local, and domestic or foreign) or governmental authority against any Seller due or becoming due by reason of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution ActA) or employer F.I.C.A., and liabilities for income taxes arising as a result the conduct of the transfer Business, (B) the ownership, possession, use, operation, purchase, acquisition or disposition of the Station Assets Acquired Assets, or (C) otherwise by virtue of the consummation of arising from the transactions contemplated hereby.by this Agreement;
2.2.3 All (f) all liabilities or and obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of Person at any breach time employed by any Seller or any predecessor Seller’s predecessor-in-interest in the Business or Affiliate of Seller otherwise, at any time or to any such Person’s spouses, children, other dependents or beneficiaries, with respect to incidents, events, exposures or circumstances occurring at any time during the period or periods of any of the terms or conditions of such Persons’ employment by any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor Seller’s predecessor-in-interest, whenever such claims mature or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerare asserted, including, without limitation, all liabilities for wagesand obligations arising (A) under any Benefit Plans, supplemental unemployment benefits(B) under any employment, vacation benefitswage and hour restriction, severance benefitsequal opportunity, retirement benefitsdiscrimination, COBRA benefitsplant closing or immigration and naturalization laws, FAMLA benefits(C) under any collective bargaining laws, WARN obligations and liabilitiesagreements or arrangements, (D) in connection with any workers’ compensation or any other employee benefitshealth, withholding tax liabilitiesaccident, workers' compensationdisability or safety claims or (E) all other employment related obligations, including accrued but unpaid wages, bonuses, severance payments, accrued vacation liabilities and health care continuation (“COBRA”) liabilities and any stay-bonus or severance obligations;
(g) all liabilities and obligations relating to any litigation, action, suit, claim, investigation or proceeding pending at Closing, or unemployment compensation benefits or premiumsconstituted hereafter, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable based in whole or in part (to employment the extent such part occurred prior to the Closing) on events or termination conditions occurring or existing in connection with, or arising out of, or otherwise relating to, the Business as operated by Seller Sellers or their predecessors-in-interest, or the ownership, possession, use, operation, sale or other disposition prior to the Closing of any of the Acquired Assets (or any other assets, properties, rights or interests associated with the Business at any time prior to the Closing), including without limitation, relating to or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.lawsuit entitled G.C. & K.
Appears in 1 contract
Samples: Asset Purchase Agreement (Midas Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Except for the liabilities and obligations to the contrarybe assumed by Buyer pursuant to Section 2.3, Buyer does will not assume or agree to paybe liable for any liabilities of Seller, satisfyknown or unknown, discharge contingent or performabsolute, and will not be deemed by virtue accrued or otherwise (the “Retained Liabilities”). Without limiting the generality of the execution and delivery of this Agreement or any document delivered at the execution of this Agreementforegoing, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or and obligations of the Seller (the "are Retained Liabilities")::
2.2.1 All (a) Any liabilities, obligations or liabilities debts of Seller Seller, whether fixed, contingent or any predecessor mixed and whether based on events occurring before or Affiliate of Seller which relate to any of after the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this AgreementClosing, tax liabilities of any and all kinds (federalincluding without limitation those based on tort, statecontract, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, statutory or other claims attributable in whole or in part to employment involving fines or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating penalties payable to any litigationgovernmental authority, proceeding, or investigation of any nature excepting contractual liabilities arising out of the operations of the Stations on or prior to after the Closing Date includingunder the Assumed Contracts, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, Permits and any warranty claims.Permitted Exceptions;
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness(b) Any liabilities, obligations or accrued liabilities debts of Seller for any Taxes, including without limitation federal income taxes, state income and sales and excise taxes, state and local real and personal property taxes and federal, state and local withholding and payroll taxes, except as otherwise provided in this Agreement;
(c) Any liabilities, obligations or debts of Seller for trade payables or account payables (whether or not the same has become due and payable), loans, notes, advances, intercompany borrowing or other form of indebtedness incurred by Seller.;
2.2.9 (d) Any liabilities liabilities, obligations or obligations resulting from the failure to comply with or imposed debts of Seller pursuant to any environmental protection, health, warranties (express or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters implied) to customers for products sold by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.;
2.2.10 (e) Any fees liabilities, obligations or debts of Seller in respect of any Excluded Asset;
(f) Any liabilities, obligations or debts of Seller under any employment, severance or other agreement with any employee of Seller and expenses incurred by all liabilities relating to payroll, bonus or deferred compensation, vacation, sick leave, workers compensation, unemployment benefits, pension or retirement benefits, stock bonuses, stock purchases, options, profit-sharing plans, health care plans or any other benefits or employee plans of any kind for all current and former employees of Seller with respect to their employment with Seller;
(g) Any liabilities, obligations or debts of Seller under or in connection with negotiatingthe Assumed Contracts, preparingPermitted Exceptions, closingWater Rights, and carrying out this Agreement and or Permits arising from any performance or breach thereof occurring on or before the transactions contemplated Closing Date;
(h) Any liabilities, obligations or debts of Seller arising from the operation by this AgreementSeller of the Assets on or before the Closing Date; and
(i) Any liabilities, including, without limitation, the fees and expenses obligations or debts of Seller's attorneys, accountants, consultants and brokersSeller under any Environmental Law.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than Except for the Assumed Liabilities, including the Purchaser shall not assume and shall have no obligation to discharge, perform or fulfil any of the following liabilities or obligations obligations, contingent or otherwise, of the Seller or related to the Purchased Business or the Purchased Assets (collectively, the "“Retained Liabilities"):”), including:
2.2.1 All obligations (a) liabilities incurred or accruing due prior to the Effective Time under the Assumed Contracts and the Leases, except and only to the extent reflected in the Final Working Capital Statement;
(b) liabilities of Seller under Contracts that are not Assumed Contracts or any predecessor or Affiliate of Seller which otherwise relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax (c) any liabilities of any and all kinds (federal, state, local, and foreign) of the Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out Taxes in respect of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller Purchased Business or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or Purchased Assets arising prior to the Closing Date., whether or not payable prior to the Closing Date, or any other Taxes whatsoever that may be or become payable by the Seller including any income or corporation taxes resulting from or arising as a consequence of the sale by the Seller to the Purchaser of the Purchased Assets;
2.2.10 Any fees and expenses incurred by Seller (d) any liability in respect of, or in connection with negotiatingwith, preparingEmployees retained by the Seller or who do not accept the Purchaser’s offer of employment;
(e) subject to Sections 2.4(b) and 2.4(c), closingliabilities arising out of a breach by the Seller of an Assumed Contract or Authorization;
(f) liabilities relating to Employees for periods prior to the Effective Time except to the extent such liabilities are included as current liabilities on the Final Working Capital Statement;
(g) all liabilities for Taxes relating to the Purchased Business for periods prior to the Effective Time;
(h) any liability of or in respect of the Seller Benefit Plans;
(i) all litigation or other proceedings relating to the Purchased Assets or the conduct of the Purchased Business prior to the Effective Time, whether commenced before or after the Closing Date and carrying out this Agreement and whether or not disclosed in the transactions contemplated by this Agreement, including, without limitation, Seller Disclosure Letter or otherwise; and
(j) all indebtedness except to the fees and expenses of Seller's attorneys, accountants, consultants and brokersextent included as current liabilities in the Final Working Capital Statement.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Seller and the UK Subsidiary shall retain and be solely liable for all debts, penalties, obligations, or liabilities of Seller and the UK Subsidiary whatsoever, whether known or unknown, whether current, long-term, liquidated or contingent, which are not Assumed Liabilities. The Retained Liabilities shall include, without limitation, the following:
(i) All real property taxes, personal property taxes and similar ad valorem Taxes that relate to the contraryAcquired Assets for taxable periods (or portions thereof) ending on or prior to the Closing Date; for the purpose of this Section 2.1(d)(i), Buyer such Taxes which are payable for a taxable period that includes, but does not assume or agree to payend on, satisfy, discharge or perform, and will not the Closing Date shall be deemed by virtue allocated ratably on a daily basis;
(ii) Taxes of the execution and delivery of this Agreement UK Subsidiary or Seller or any document delivered at other Person for which Seller is liable under Section 1.1502-6 of the execution Treasury Regulations (which, for the avoidance of this Agreementdoubt, include all Taxes required to be paid by Seller not described in Section 2.1(d)(i), including all sales and use taxes due with respect to transactions occurring on or prior to the Closing Date) and the portion of the Transfer Taxes for which Seller is liable under ARTICLE VII;
(iii) any and all liabilities or obligations in any way arising from or relating to Employee Plans prior to the Closing with respect to Assumed Employees;
(iv) any sums payable pursuant to Section 3.9(b) including those relating to the termination of any employee of Seller by Seller or any employee of the UK Subsidiary by the UK Subsidiary;
(v) Intellectual Property infringement claims made by any third party whether made before or after the Closing Date, with respect to Seller’s or the UK Subsidiary’s operation of the Business prior to the Closing Date;
(vi) all Accounts Payable incurred by Seller or the UK Subsidiary on or prior to the Closing Date;
(vii) all liabilities arising out of, under or in connection with Contracts that are not Acquired Contracts;
(viii) all liabilities of Seller or the UK Subsidiary relating to Seller’s compliance or the UK Subsidiary’s compliance, as applicable, with Orders or other legal requirements of Seller or the UK Subsidiary (including, without limitation, the Regulations);
(ix) any liability to indemnify, reimburse or advance amounts to any officer, director or stockholder of Seller or its Affiliates;
(x) any and all liabilities constituting, or as a result arising out of, the Existing Indebtedness or any other indebtedness of Seller or the consummation UK Subsidiary owed to its banks, shareholders or any other non-arm’s length party;
(xi) any and all liabilities relating to the Confidential Settlement Agreement and Release made between Seller and Jxxx XxXxxxxx dated November 29, 2016;
(xii) any and all liabilities constituting, or arising out of any claims made by the shareholders of Seller in respect of the transactions contemplated by this Agreement, to have assumed; and
(xiii) all liabilities in respect of any pending or threatened litigation, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or claim arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out otherwise in respect of the operations operation of the Stations on or prior Business to the Closing Date including, without limitation, any claims against extent such litigation or any liabilities for injury claim and associated liability relates to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions such operation on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claimsdebts, liabilities, and or obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising that (1) arise out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from events or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations conditions occurring on or prior to the Closing Date includingor arise out of the operation of the Business at or prior to the Closing or (2) arise, without limitationmature or become due at or prior to the Closing, shall remain the sole responsibility of and shall be retained, paid, performed and discharged by DMC/SF. Aerojet shall not assume, pay, or in any way be liable or responsible for any of such debts, liabilities, or obligations (collectively, the “Retained Liabilities”), including but not limited to:
(i) any wages, salary, severance, bonuses, commissions, vacation or holiday pay, post retirement medical benefits, fringe benefits, long-term disability benefits, life insurance benefits, any claims against duties, obligations or liabilities arising under any liabilities for injury employee benefit plan, policy or practice, whether defined by ERISA or otherwise, relating to the Business employees or death other amounts due to any employees or former employees of persons the Business which accrue on or damage to or destruction before the date such employees become employees of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except Aerojet (as provided in Section 3.3Article 6.1 hereof), any accounts payable, other indebtedness, obligations including but not limited to claims (for severance benefits and otherwise) by such employees that were discharged or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed constructively discharged pursuant to the transactions contemplated pursuant to this Agreement; as well as any environmental protectionfederal, healthstate, or safety laws local government claims, audit charges, enforcement actions, or regulations other proceedings regarding labor, employment or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, socioeconomic issues;
(ii) any liability or obligation of DMC/SF relating to, resulting from, caused by, or arising out of the ownership, operations or control of the Business (including but not limited to breach of contract and warranty claims relating to products delivered prior to the Closing Date, except for cleaning up waste disposal sites from those products delivered to Aerojet) by DMC/SF,
(iii) any Environmental Matter (as defined in Article 3.10 hereof) including but not limited to (1) any violation, liability, penalty, cost, damage, fine, order, judgment or related obligation under Environmental Laws (as defined in Article 3.10 hereof) to the extent they arise out of acts or omissions occurring on or prior to the Closing Date.
2.2.10 Any fees , (2) the presence of any and expenses incurred by Seller all environmental conditions, environmental liabilities or Hazardous Substances (as defined in connection with negotiatingArticle 3.10 hereof) at, preparingin, closingby, and carrying out this Agreement and the transactions contemplated by this Agreementfrom, including, without limitationor related to, the fees Premises or the operation of the Business that arose, commenced, occurred or existed prior to the Closing Date; and expenses (3) the recycling, reclamation, incineration, or the arrangement of Seller's attorneystransportation, accountantsby DMC/SF in the operation of the Premises or of the Business of any Hazardous Substances (as defined in Article 3.10 hereof) that occurred on or before the Closing Date;
(iv) any Worker’s Compensation liability;
(v) any workplace safety liability arising under federal, consultants state, or local occupational safety laws (e.g., OSHA);
(vi) any supplier or vendor liabilities, except as specifically agreed to at Closing and brokerspursuant to assignment or novation of any such contract.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, (a) Buyer does shall not assume or agree become liable for, in whole or in part, the payment or performance of any debts, Taxes (except as and to paythe extent provided in Section 4.3), satisfyLiabilities, discharge Litigation, losses, Credit Losses, Chargebacks, accounts payable, indebtedness, mortgages, or performother obligations of Seller, and will not be deemed by virtue of the execution and delivery of this Agreement GCS, Parent or any document delivered at Merchant or other third party, whether the execution same are known or unknown, now existing or hereafter arising, of this Agreementwhatever nature or character, whether absolute or as a result of the consummation of the transactions contemplated by this Agreementcontingent, to have assumedliquidated or disputed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the that are not Assumed Liabilities, including any of the following liabilities or obligations of the Seller those items provided in Section 3.2(b) below (the "Retained Liabilities"):). Without limiting the foregoing, Buyer shall not assume, and Seller and/or Parent shall retain, discharge and pay any and all liabilities and obligations, direct or indirect, absolute or contingent:
2.2.1 All obligations (i) arising before the Effective Time, or relating to any time prior to the Effective Time, in connection with the ownership or operation of the Business or the Transferred Assets, including (x) any claim by any Person alleging any failure by Seller, GCS or Parent to comply with the terms and conditions of any Transferred Contract or Transferred Permit before the Effective Time and (y) any and all Chargebacks and Credit Losses in respect of any Assigned Merchant Agreement that relate to or arise out of transactions, events, acts or omissions of Seller, GCS, Parent or a Merchant or other third party which occurred prior to the Effective Time;
(ii) in respect of any other claims, Liabilities or Litigation with respect to (A) the Retained Assets and the Business conducted in connection with the foregoing, and (B) the Transferred Assets and the Business conducted in connection with the foregoing, provided that any such claims, Liabilities or Litigation in respect of the Transferred Assets relate to or arise out of events, transactions or actions or omissions prior to the Effective Time; or
(iii) arising out of or related to the matters set forth on Section 3.2(a)(iii) of the Seller Disclosure Schedule.
(b) Buyer shall not adopt, assume or otherwise become responsible for, either primarily or as a successor employer, any assets or liabilities of Seller any employee benefit plans, arrangements, commitments or policies currently provided by Seller, GCS, Parent, or by any predecessor member of Seller's, GCS's or Affiliate Parent's controlled group of Seller corporations, including any employee retention agreements or commission buyout agreements with any Designated Employees as referenced in Section 8.1(k). In particular, Buyer shall not assume liability for any group health continuation coverage or coverage rights under Internal Revenue Code Section 4980B and ERISA Section 606 which relate to any exist as of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this AgreementClosing Date, tax liabilities of any and all kinds (federalthe Effective Time or the Designated Employee Transfer Date, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising which may arise as a result of termination of any group health plan or plans in existence in connection with the transfer Business.
(c) To the extent that, if required due to the sale of the Station Transferred Assets hereunder, adequate notice (or otherwise pay and benefits) is not provided by virtue of Seller, GCS or Parent under the consummation of Worker Adjustment and Retraining Notification Act, 29 U.S.C. §§2101-2109 (the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined"WARN Act");
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefitsSeller, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure GCS and/or Parent otherwise fail to comply with or imposed pursuant the WARN Act, Parent, Seller and GCS agree to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastesretain, and liquid and gaseous matters by Seller and by any other person in relation to Seller Buyer shall not assume or the Stations, including, without limitationotherwise become responsible for, any liability or obligation for cleaning up waste disposal sites from or related arising under the WARN Act with respect to acts or omissions the Designated Employees whose employment is terminated on or prior to before the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses Effective Time or the Designated Employee Transfer Date. To the extent the Buyer determines in its sole discretion to hire any Designated Employees after the Closing Date, Buyer agrees to provide adequate notice or assume any liability as may be required under the WARN Act or applicable state or local law for any terminations of Seller's attorneys, accountants, consultants and brokerssuch employment after hire by Buyer after the Effective Time.
Appears in 1 contract
Samples: Merchant Asset Purchase Agreement (First Horizon National Corp)
Retained Liabilities. Notwithstanding anything contained Except as expressly provided in Section 5.1, the Purchaser shall not assume, and the Seller shall retain, discharge and pay, and hold the Purchaser harmless from and against, as contemplated by Section 14 hereof, any and all liabilities of the Seller, whether fixed or contingent, accrued or unaccrued, liquidated or unliquidated, disclosed or undisclosed, of any kind or nature whatsoever. The liabilities to be retained by the Seller as contemplated by this -------------------- Agreement Section 5.2 are hereinafter referred to as the "Retained Liabilities." The Retained Liabilities shall include, without limitation, the following:
(a) liabilities and obligations of the Seller accruing prior to the contrary, Buyer does not assume Effective Time under each Commercial Contract and each other contract listed on Schedule 5.1;
(b) indebtedness and other obligations or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue guarantees of the execution Seller, including, without limitation, the accounts payable and delivery other current liabilities of this Agreement or any document delivered at the execution Seller excepting solely the contractual obligations of this Agreementthe Seller accruing after the Effective Time and included in the Assumed Liabilities;
(c) federal, state, or as a result local tax liabilities or obligations of the Seller for Taxes, including, without limitation, Taxes arising in connection with the consummation of the transactions contemplated hereby;
(d) liabilities for any and all claims by this Agreementor on the behalf of the Seller's shareholders, to have assumedofficers, directors, employees or contractors, including, without limitation, liability arising under any Benefit Plan including, but not limited to, any pension, profit sharing, deferred compensation, severance or termination pay or any employee health and welfare benefit plans, liability for any EEOC claim, OSHA claim, employment discrimination claim (whether based on sex, age, race, or to have agreed to payotherwise), satisfywage and hour claim, discharge unemployment compensation claim, worker's compensation claim and the like, and liability for all employee wages and benefits, and taxes or perform, other liability related thereto;
(e) any liability or obligation of the Seller other than or the Assumed LiabilitiesSeller's shareholders, including any of members, directors, officers, employees, agents, or independent contractors, with respect to Hazardous Materials or Environmental Laws, whether known or unknown at the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded AssetsEffective Time;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreignf) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by the Seller at any time prior to the Effective Time of any contract or commitment, whether or not assumed by the Purchaser;
(g) any liability arising out of or in connection with claims for acts or omissions of the Seller or any predecessor the Seller's shareholders, members, directors, officers, employees, agents, or Affiliate of Seller of any of independent contractors, which allegedly occurred prior to the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerEffective Time, including, without limitation, liabilities for wagesall malpractice, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations professional liability and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical general liability claims, occupational disease and claims of and liabilities to the Commercial Members against the Seller, whether or disability claimsnot same are pending, threatened, known or other claims attributable unknown;
(h) liabilities or obligations in whole respect of contracts or agreements of the Seller which are not described on Schedule 5.1 and expressly assumed in part writing by the Purchaser;
(i) subject to employment or termination by Seller or arising out of Section 5.3, any labor matter involving Seller as an employer, and any claimsall debts, liabilities and obligations arising from of the Seller to Providers (or relating to health care providers not under contract to Seller) for services rendered to Commercial Members prior to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, Effective Time or expenses relating to any litigation, proceeding, or investigation in respect of any nature arising out of the operations of the Stations periods ending on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.Effective Time;
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any (j) liabilities or obligations resulting from arising out of any penalties, fines, assessments or claims, imposed by any Governmental Entity relating to any failure or alleged failure of the failure Seller to comply with or imposed pursuant to any environmental protectionapplicable Laws; and
(k) any debt, healthobligation, expense, or safety laws or regulations or resulting from liability of the generation, storage, treatment, transportation, handling, disposal, release Seller (including Taxes of hazardous substances, solid wastes, and liquid and gaseous matters by the Seller and the shareholders) arising out of or incurred in respect of any transaction of the Seller occurring after the Effective Time including any violation by the Seller of any other person in relation to Seller law, regulation, or the Stations, including, without limitation, ordinance at any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Datetime.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wellcare Management Group Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Except to the contraryextent expressly assumed pursuant to Section 2.3 above, the Buyer does not assume or agree to pay, satisfy, discharge or perform, and will shall not be deemed by virtue liable for any debt, obligation, responsibility or liability of the execution and delivery of this Agreement Sellers, or any document delivered at Affiliate of the execution of this AgreementSellers, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including claim against any of the following foregoing, whether known or unknown, contingent absolute or otherwise (collectively, the "RETAINED LIABILITIES"). Without limiting the foregoing sentence, the Buyer shall have no responsibility with respect to the following, whether or not disclosed in the Base Balance Sheet or a schedule hereto:
(a) any liabilities and obligations related to or arising from transactions among any or all of the Sellers, the Principal Stockholders or any Affiliate of either of the Sellers;
(b) any liabilities and obligations for Taxes of any kind arising before the Closing, including Taxes related to or arising from the transfers contemplated hereby (except as set forth in Section 2.5(a) hereof);
(c) any liabilities and obligations for damage or injury to person or property based upon events occurring prior to the Closing Date;
(d) any liabilities and obligations to present and/or former employees of either of the Sellers, whether for accident, disability, or workers compensation insurance or benefits, benefits under employee benefit plans (except for liabilities and obligations arising after the Closing Date and assumed by the Buyer under the GPI Health Contract (as defined below)), back pay, accrued vacation, or obligations related to or resulting from severance of employment by either of the Seller (the "Retained Liabilities"):
2.2.1 All obligations Sellers or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation by the Sellers of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of (e) any breach by Seller or any predecessor or Affiliate of Seller of workmen's liens on any of the terms or conditions of any provision of any Real Estate Lease or ContractPurchased Assets;
2.2.5 All (f) any liabilities and obligations of Seller the Sellers to customers or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, third parties in connection with their business with respect to shortages and obligations of Seller as an employerdefects in goods, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claimsbut not limited to, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any for product warranty and product liability claims, liabilities, losses, damages, delivered to customers or expenses relating in transit to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or customers prior to the Closing Date or placed in finished goods inventory prior to the Closing and shipped to customers after the Closing (provided such goods shipped after the Closing are identifiable), which liabilities and obligations, if resulting in damage, will be remedied in whole solely by replacing the goods in question (collectively, "FULL REMEDY PRODUCT LIABILITY CLAIMS");
(g) any liabilities and obligations of the Sellers to customers or third parties in connection with their business with respect to shortages and defects in goods, including, without limitationbut not limited to, any claims against or any liabilities and obligations for injury to or death of persons or damage to or destruction of property, any workers' compensation product warranty and product liability claims, delivered to customers or in transit to customers prior to the Closing or placed in finished goods inventory prior to the Closing and shipped to customers after the Closing (provided such goods shipped after the Closing are identifiable), which liabilities and obligations, if resulting in damage, will not be remedied in whole by replacing the goods in question (collectively, "INCOMPLETE REMEDY PRODUCT LIABILITY CLAIMS");
(h) any warranty claims.liability under any Employee Benefit Plan, except for those liabilities arising after the Closing Date associated with the Group Agreement (Purchaser ID No. 226250; Contract ID No. 1.4) by and between the GPI Company and Xxxxxx Permanente (the "GPI HEALTH CONTRACT");
2.2.8 Except as provided in Section 3.3(i) any liability relating to government grants, any accounts payable, subsidies or other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, assistance including, without limitation, any liability for reimbursement to a Governmental Authority for any research and development grants, subsidies or obligation for cleaning up waste disposal sites from assistance previously paid by the Governmental Authority relating to or related to acts or omissions on or prior to arising out of either of the Closing Date.Sellers' business;
2.2.10 Any fees and expenses (j) liabilities incurred by Seller the Sellers in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreementprovided for herein, includingincluding counsel and accountant's fees, without limitation, the filing fees and expenses related to the Sellers' performance of Seller's attorneystheir obligations hereunder;
(k) liabilities of the Sellers with respect to any options, accountantswarrants, consultants agreements or convertible or other rights to acquire any shares of their capital stock of any class;
(l) the following judgment liens: (i) Xxxxxxx Xxxxx, dba Collection Network x. Xxxxxxxx X. Xxxx & Xxxxx X. Xxxx Family Trust; Xxxxxxxx X. Xxxx; Xxxxx X. Xxxx; General Precision, Inc., a corporation, Judgment entered December 14, 2000 in Superior Court of California, Los Angeles County, Los Cerritos Justice District, for $4,732.00; and brokers(ii) Automation Controls v. General Precision, Inc., Judgment entered March 9, 2001 in Superior Court of California, Los Angeles County, North Valley District-Newhall, for $1,737.88. Notice of Lien issued May 29, 2001;
(m) payroll obligations incurred by the Sellers during the period of September 15, 2001 through the Closing Date in excess of $200,000;
(n) Deed of Trust, Assignment of Rents and Fixture Filing by and between Xxxxxxxx X. Xxxx, Xxxxx X. Xxxx, Trustees of the Nasr Family Trust dated September 7, 1999 as Trustor, and Equitable Deed Company, as Trustee, for the benefit of Bank of America, N.A. dated May 8, 2000; and
(o) $250,000 of professional fees accrued on the Base Balance Sheet.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does shall not assume or agree be obligated to pay, satisfy, discharge perform or performabide by, and will Seller shall retain exclusive responsibility for, any liabilities, debts, obligations, undertakings or commitments of the Seller (the “Retained Liabilities”), other than the Assumed Liabilities. Except for Assumed Balance Sheet Liabilities identified and set forth on Schedule 2.2(A)(1) (as amended by the Supplemental Schedule), the Retained Liabilities shall include, but not be deemed limited to, the following:
(1) Any sales, use, income, gross receipts, excise, franchise, employment, withholding or other imposition, duty or tax (each, a “Tax”) imposed by virtue or payable to any governmental body, federal, state or local, on or with respect to any period prior to the Effective Date or in respect to the sale and transfer of the execution and delivery of this Agreement Purchased Assets or the Assumed Liabilities;
(2) Any liability or obligation accruing prior to the Effective Date in respect to (a) any employee benefit plan or any document delivered at other employee benefit arrangement or commitment which is or has been maintained or contributed to by Seller, (b) any portion of any bonuses earned or accrued upon the execution basis of any events occurring prior to the Effective Date, (c) any accrued vacation benefits, or (d) any obligation to reimburse any employee for expenses incurred prior to the Effective Date;
(3) Any liability or obligation which, absent this provision, comprises a part of the Assumed Liabilities but which is covered by any insurance policy maintained by Seller or any of Seller’s affiliates (but, then, only to the extent of such insurance coverage);
(4) Any (a) inter-company charges or amounts due Parent or any affiliate of Seller or Parent, (b) claims relating to inter-franchise payment obligations which are based on the non-payment of amounts owing any other franchisee of the Franchisor, (c) amounts due for borrowed money, (d) obligations arising under any agreement, instrument or other contractual undertaking or commitment that is not an Assigned Contract or which is not an Assumed Liability, (e) obligations to refund prepayments by customers which Seller received without providing any training prior to the Effective Date or which prepayments represent duplicate payments, or (f) inter-franchise obligations relating to payment for training provided by franchisees of the Franchisor other than the Buyer or its affiliates upon redemption of national training coupons sold by Seller prior to the Effective Date in circumstances where same are redeemed more than one (1) year after the issuance of such coupons;
(5) [***************]
(6) Any (a) liability or obligation to indemnify any director, officer, employee or agent of Seller, except with regard to indemnification obligations owed to Seller or Parent from Buyer and/or Owners arising under this Agreement, (b) liability arising out of or as in connection with any violation of a result of the consummation of the transactions contemplated by this Agreementstatute or governmental rule, to have assumedregulation, directive or to have agreed to payother requirement, satisfy, discharge or perform, and any liability or obligation of the Seller other than the Assumed Liabilitiesa conditional, including any contingent or similar nature except for matters which arise from or relate to a breach of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates Owner Business Representations (as hereinafter defineddefined and further described in Section 6.3 below);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, (c) liability or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising obligation which arises from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations is based on or prior to the Closing Date including, without limitation, any claims against or any liabilities a claim for injury to or death of persons persons, or damage to or destruction of property, regardless of when asserted, but which arises from facts or circumstances which occurred prior to the Effective Date;
(7) The obligations of Seller, Parent or their affiliate(s) on any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided guaranty of the Facilities Lease (but subject to the provisions set forth in Section 3.34.1); and
(8) Any debts, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, healthincurred by Seller, or safety laws actions, claims or regulations lawsuits asserted against either Buyer or resulting from Seller which relate to the generation, storage, treatment, transportation, handling, disposal, release operation of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or Business prior to the Closing Effective Date, except for matters which arise from or relate to (x) a breach of the Owner Business Representations (as defined and further described in Section 6.3 below), (y) the Assumed Liabilities, and/or (z) the Training Obligations.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (New Horizons Worldwide Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Except for the liabilities and obligations to the contrarybe assumed by Buyer pursuant to Section 2.3, Buyer does will not assume or agree to paybe liable for any liabilities of Seller, satisfyknown or unknown, discharge contingent or performabsolute, and will not be deemed by virtue accrued or otherwise (the “Retained Liabilities”). Without limiting the generality of the execution and delivery of this Agreement or any document delivered at the execution of this Agreementforegoing, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or and obligations of the Seller (the "are Retained Liabilities")::
2.2.1 All (a) Any liabilities, obligations or liabilities debts of Seller Seller, whether fixed, contingent or any predecessor mixed and whether based on events occurring before or Affiliate of Seller which relate to any of after the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this AgreementClosing, tax liabilities of any and all kinds (federalincluding without limitation those based on tort, statecontract, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, statutory or other claims attributable in whole or in part to employment involving fines or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating penalties payable to any litigationgovernmental authority, proceeding, or investigation of any nature excepting contractual liabilities arising out of the operations of the Stations on or prior to after the Closing Date includingunder the Assumed Contracts, without limitationPermits, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, Real Property Leases and any warranty claims.Permitted Exceptions;
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness(b) Any liabilities, obligations or accrued liabilities debts of Seller for any Taxes, including without limitation federal income taxes, state income and sales and excise taxes, state and local real and personal property taxes and federal, state and local withholding and payroll taxes, except as otherwise provided in this Agreement;
(c) Any liabilities, obligations or debts of Seller for trade payables or account payables (whether or not the same has become due and payable), loans, notes, advances, intercompany borrowing or other form of indebtedness incurred by Seller.;
2.2.9 (d) Any liabilities liabilities, obligations or obligations resulting from the failure to comply with or imposed debts of Seller pursuant to any environmental protection, health, warranties (express or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters implied) to customers for products sold by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.;
2.2.10 (e) Any fees liabilities, obligations or debts of Seller in respect of any Excluded Asset;
(f) Any liabilities, obligations or debts of Seller under any employment, severance or other agreement with any employee of Seller and expenses incurred by all liabilities relating to payroll, bonus or deferred compensation, vacation, sick leave, workers compensation, unemployment benefits, pension or retirement benefits, stock bonuses, stock purchases, options, profit-sharing plans, health care plans or any other benefits or employee plans of any kind for all current and former employees of Seller with respect to their employment with Seller;
(g) Any liabilities, obligations or debts of Seller under or in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitationAssumed Contracts, the fees and expenses Real Property Leases, Permitted Exceptions, Water Rights, or Permits arising from any performance or breach thereof occurring on or before the Closing Date;
(h) Any liabilities, obligations or debts of Seller's attorneysSeller arising from the operation by Seller of the Assets on or before the Closing Date; and
(i) Any liabilities, accountants, consultants and brokersobligations or debts of Seller under any Environmental Law.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement At Closing, Seller shall retain all liability for, and Buyer shall not have any obligation or liability concerning the following (collectively, the “Retained Liabilities”): (1)any liabilities under any Contracts, to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, extent such liabilities are due and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or payable prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees liability for the payment of any amounts due and payable prior to the Closing Date under any Contracts; (2)any liabilities under the Declaration as owner of the Property to the extent such liabilities are due and payable prior to the Closing Date, including, without limitation, the liability for the payment of any amounts due and payable prior to the Closing Date under the Declaration as owner of the Property; (3)any liabilities under the Development Agreement dated October 26, 1998 and recorded August 6, 1999 in the Official Records of San Mateo County, California (the “Development Agreement”), excluding any expenses or other liabilities under the Declaration that are described or referenced in, or defined by reference to, the Development Agreement (including but not limited to obligations under Section 9.20 of Seller's attorneysthe Declaration), accountantsprovided, consultants however, that neither Seller nor Buyer is hereby asserting that there are now or hereafter any liabilities under the Development Agreement other any liabilities under the Declaration that are described or referenced in, or defined by reference to, the Development Agreement; (4)any claim for personal injury or property damage which is based on any event that occurred prior to the Closing Date either at the Real Property or in connection with the Property; (5)any damages (including costs of cleanup, containment or other remediation) arising from or in connection with any environmental, health or safety liabilities arising out of or relating to (i) the ownership or operation of the Property by Seller prior to the Closing Date, or (ii) any bodily injury (including illness, disability and brokersdeath, regardless of when any bodily injury manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any person or any assets in any way arising from or allegedly arising from any hazardous activity conducted by Seller with respect to the Property.; and (6)any pending litigation against Seller or litigation filed against Seller after Closing pertaining to the Retained Liabilities. Notwithstanding the foregoing or anything to the contrary contained in this Agreement or in any other document contemplated herein or executed in connection herewith, Seller and Buyer hereby acknowledge and agree that in no event shall Seller have any liability or obligation (as a Retained Liability or otherwise) with respect to matters for which the “Lessee” under any Tenant Lease is responsible or liable (including but not limited to any payment or reimbursement obligations of the “Lessee” under the Tenant Leases).
Appears in 1 contract
Samples: Purchase and Sale Agreement
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue In furtherance of the execution parties intentions set forth in Section 1.01, Sellers acknowledge and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of agree that they are responsible for and shall indemnify and hold harmless Purchaser from and against any and all kinds (federalclaims, stateliabilities, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities losses or obligations arising out of or in connection with the Acquired Assets or the Business other than the Assumed Liabilities (the “Retained Liabilities”), including:
(a) any breach by Seller accrued salaries, bonuses or other accrued compensation or employee benefits of any employees of Sellers other than accrued bonuses included as a current liability in the calculation of Net Working Capital pursuant to Section 2.02;
(b) any obligations to employees or consultants of Sellers under any employment, consulting, change of control or severance agreements;
(c) all obligations of Sellers under this Agreement;
(d) all taxes with respect to the ownership of the Acquired Assets or conduct of the Business with respect to all periods ending prior to the Effective Time;
(e) all fees and expenses owed to third parties incurred in connection with the sale of the Acquired Assets;
(f) any contracts, agreements or instruments to which Sellers or any predecessor of their Affiliates is a party or Affiliate of Seller of any of the terms Acquired Assets are bound, whether or conditions of any provision of any Real Estate Lease or Contractnot relating to the Business other than liabilities arising after the Closing under Scheduled Contracts;
2.2.5 All liabilities and (g) all obligations of Seller or Sellers with respect to any predecessor or Affiliate of Seller resulting fromindebtedness, caused by or arising out of, any violation of lawincluding but not limited to indebtedness for borrowed money and the other obligations described on Schedule 3.02(g);
2.2.6 Any claims, liabilities, and (h) all obligations of Seller as an employerSellers to Affiliates of Sellers, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out the extent not used to calculate the amount of any labor matter involving Seller as an employer, and any claims, Net Working Capital pursuant to Section 2.02; and
(i) all liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts the business, operations or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred activities conducted by Seller Sellers in connection with negotiatingthe Business, preparing, closing, and carrying out this Agreement and to the transactions contemplated by this Agreement, including, without limitation, extent not an Assumed Liability or used to calculate the fees and expenses amount of Seller's attorneys, accountants, consultants and brokersNet Working Capital pursuant to Section 2.02.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does shall not assume or agree be obligated to pay, satisfy, discharge perform or performabide by, and will Seller shall retain exclusive responsibility for, any liabilities, debts, obligations, undertakings or commitments of the Seller (the “Retained Liabilities”), other than the Assumed Liabilities. Except for Assumed Balance Sheet Liabilities identified and set forth on Schedule 2.2(A)(1) (as amended by the Supplemental Schedule), the Retained Liabilities shall include, but not be deemed limited to, the following:
(1) Any sales, use, income, gross receipts, excise, franchise, employment, withholding or other imposition, duty or tax (each, a “Tax”) imposed by virtue or payable to any governmental body, federal, state or local, on or with respect to any period prior to the Effective Date or in respect to the sale and transfer of the execution and delivery of this Agreement Purchased Assets or the Assumed Liabilities;
(2) Any liability or obligation accruing prior to the Effective Date in respect to (a) any employee benefit plan or any document delivered at other employee benefit arrangement or commitment which is or has been maintained or contributed to by Seller, (b) any portion of any bonuses earned or accrued upon the execution basis of any events occurring prior to the Effective Date, (c) any accrued vacation benefits, or (d) any obligation to reimburse any employee for expenses incurred prior to the Effective Date;
(3) Any liability or obligation which, absent this provision, comprises a part of the Assumed Liabilities but which is covered by any insurance policy maintained by Seller or any of Seller’s affiliates (but, then, only to the extent of such insurance coverage);
(4) Any (a) inter-company charges or amounts due Parent or any affiliate of Seller or Parent, (b) claims relating to inter-franchise payment obligations which are based on the non-payment of amounts owing any other franchisee of the Franchisor, (c) amounts due for borrowed money, (d) obligations arising under any agreement, instrument or other contractual undertaking or commitment that is not an Assigned Contract or which is not an Assumed Liability, (e) obligations to refund prepayments by customers which Seller received without providing any training prior to the Effective Date or which prepayments represent duplicate payments, or (f) inter-franchise obligations relating to payment for training provided by franchisees of the Franchisor other than the Buyer or its affiliates upon redemption of national training coupons sold by Seller prior to the Effective Date in circumstances where same are redeemed more than one (1) year after the issuance of such coupons; [**************]
(6) Any (a) liability or obligation to indemnify any director, officer, employee or agent of Seller, except with regard to indemnification obligations owed to Seller or Parent from Buyer and/or Owners arising under this Agreement, (b) liability arising out of or as in connection with any violation of a result of the consummation of the transactions contemplated by this Agreementstatute or governmental rule, to have assumedregulation, directive or to have agreed to payother requirement, satisfy, discharge or perform, and any liability or obligation of the Seller other than the Assumed Liabilitiesa conditional, including any contingent or similar nature except for matters which arise from or relate to a breach of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates Owner Business Representations (as hereinafter defineddefined and further described in Section 6.3 below);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, (c) liability or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising obligation which arises from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations is based on or prior to the Closing Date including, without limitation, any claims against or any liabilities a claim for injury to or death of persons persons, or damage to or destruction of property, regardless of when asserted, but which arises from facts or circumstances which occurred prior to the Effective Date;
(7) The obligations of Seller, Parent or their affiliate(s) on any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided guaranty of the Facilities Lease (but subject to the provisions set forth in Section 3.34.1); and
(8) Any debts, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, healthincurred by Seller, or safety laws actions, claims or regulations lawsuits asserted against either Buyer or resulting from Seller which relate to the generation, storage, treatment, transportation, handling, disposal, release operation of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or Business prior to the Closing Effective Date, except for matters which arise from or relate to (x) a breach of the Owner Business Representations (as defined and further described in Section 6.3 below), (y) the Assumed Liabilities, and/or (z) the Training Obligations.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (New Horizons Worldwide Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the any Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller Sellers (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of any Seller or any predecessor or Affiliate of a Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller Sellers including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.;
2.2.3 All liabilities or obligations of any Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by any Seller or any a predecessor or Affiliate of any Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of any Seller or any a predecessor or Affiliate of any Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, liabilities and obligations of any Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by that Seller or arising out of any labor matter involving that Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.;
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of any of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.;
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of any Seller.;
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by any Seller and by any other person in relation to Seller Sellers or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.; and
2.2.10 Any fees and expenses incurred by Seller Sellers in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's Sellers' attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything Nothing contained in this -------------------- Agreement is intended to, nor shall it, constitute or cause Buyer to the contrary, Buyer does not assume or agree be a successor to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other Seller. Other than the Assumed Liabilities, including Buyer will not assume, undertake, accept or be bound by or responsible for, and the Purchased Assets shall not be subject to, and Seller will remain liable for, any liabilities, payables, contracts, agreements, commitments or obligations of Seller or its directors, officers or members, or the Affiliates of any of the following liabilities foregoing, whether due or obligations of to become due, absolute or contingent, direct or indirect, asserted or unasserted, known or unknown, choate or inchoate, including xxx xf the Seller following:
(the "Retained Liabilities"):
2.2.1 All a) any obligations or liabilities of Seller arising or any predecessor or Affiliate of Seller which relate to any of incurred after the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions date of this Agreement, tax including any obligations of Seller to perform under any of the contracts of Seller other than those specific obligations which arise under the contracts listed on Schedule 2.1(f), which first arise and accrue following the Closing;
(b) subject to the provisions of Section 5.1(b), any obligations of Seller to perform under this Agreement and any obligations incurred by Seller for legal and accounting fees relating to this Agreement;
(c) any obligations or liabilities under any collective bargaining agreements, any employment agreements (oral or written) or any employee benefit plans or trusts;
(d) any obligations or liabilities of any Seller to creditors listed in Schedule 2.3 in amounts greater than those shown on Schedule 2.3, except trade payables incurred by Seller after the date of Schedule 2.3 and created in the ordinary course of business, consistent with past practice and in accordance with this Agreement;
(e) all kinds (liabilities for federal, state, locallocal and foreign taxes (including franchise, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities real property, sales, use, excise, employment and other taxes) for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or period ending prior to the Closing Date including(as defined below);
(f) any obligations owing to any employees or members of Seller including accrued vacations and accrued sick time, without limitationmonies loaned by such employees or members to Seller, accrued salary owed to any claims against such employees and reimbursement of expenses advanced by such employees; or
(g) any obligations or any liabilities for injury relating to or death of persons arising from products sold or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or distributed prior to the Closing Date(including claims for breach of warranty or product liability, whether made before or after Closing).
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Heartland Financial Usa Inc)
Retained Liabilities. Notwithstanding anything contained in this The liabilities and obligations which shall be -------------------- Agreement to retained by the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller Company (the "Retained Liabilities"):
2.2.1 All obligations or ) shall consist of all liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other Company other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerAssumed Liabilities, including, without limitation, the following:
(a) all liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or the Company relating to the Employee Benefit Plans.indebtedness for borrowed money;
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out (b) all liabilities of the operations Company for federal, state, local or foreign Taxes, including Taxes incurred in respect of or measured by the income of the Stations Company earned on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or realized prior to the Closing Date.
2.2.10 Any fees , including any gain and expenses income from the sale of the Assets and other transactions contemplated herein, excluding those incurred by Seller Buyer in connection with negotiatingthis transaction;
(c) all liabilities for all environmental, preparingecological, closinghealth or safety claims to the extent arising out of the operation of the Company on or before the Closing Date;
(d) any liability of the Company based on its tortious or illegal conduct;
(e) all warranty liabilities for products of the Company sold prior to the Closing;
(f) any liability or obligation incurred by the Company in connection with the negotiation, and carrying out this Agreement and the transactions contemplated by execution or performance of this Agreement, including, without limitation, the all legal, accounting, brokers', finders' and other professional fees and expenses other than through Buyer's breach of Sellerthis Agreement;
(g) all liabilities incurred by the Company after the Closing Date other than through Buyer's attorneysbreach of this Agreement (except to the extent such liability is specifically assumed by Buyer); and
(h) all liabilities or obligations associated with the employees of the Company, accountantsincluding but not limited to any liability or obligation under or with respect to any collective bargaining agreement, consultants accrued paid time off (PTO), 401K plan, employment agreement, any plan, unemployment or workers' compensation laws, sales commissions (other than on orders shipped and brokersbilled after the Closing Date) unless specifically provided for elsewhere in this Agreement.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained Except for the liabilities of Seller specifically assumed in this -------------------- Agreement to the contraryaccordance with Section 1.3, Buyer does not assume or agree to pay, satisfy, discharge or performSeller is retaining, and will not be deemed by virtue of the execution Selling Parties shall indemnify and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or performhold Purchaser harmless from, any liability or obligation and all other liabilities of the Seller other than the Assumed LiabilitiesSeller, including any of without limitation the following commitments, obligations and liabilities or of Seller and the obligations of the Seller and liabilities listed on Schedule 1.4 (the "Retained Liabilities"):
2.2.1 All obligations (a) Any obligation or liabilities liability arising in connection with or pertaining to the Business for taxes of any kind or nature for all periods ending prior to the Effective Date;
(b) Any obligation or liability for services rendered by the Business prior to the Closing Date;
(c) Any obligation or liability to pay for any products, goods, raw materials or services delivered or provided to the Business prior to the Effective Date;
(d) Any liability or obligation of the Selling Parties for taxes based on or measured by any income or gain realized upon the transfer of the Assets hereunder;
(e) Any liability or obligation of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities arising out of any and all kinds "employee benefit plan", as such term is defined by the Employee Retirement Income Security Act of 1974, as amended (federal"ERISA"), state, local, and foreign) of established or maintained by Seller including, without limitation, any liabilities "successor liability" Purchaser may incur with respect to such employee benefit plans referenced in Section 4.12(b) herein;
(f) Any obligation for taxes on making payments of any kind or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. any other liability (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising including without limitation as a result of the transfer sale of Assets, the Station Assets termination of employment by Seller of employees, other labor or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities employment claims, sick pay, or obligations otherwise) to employees or former employees of Seller owed (whether " leased" under any applicable contract listed on Schedule 1.1 (g) or otherwise) relating to claims which arose as a result of events which occurred on or before the Closing (including liability for failure to comply with any state or federal statutory or regulatory requirements related to any of Seller employee medical or its Affiliates (as hereinafter definedhospitalization insurance);
2.2.4 All liabilities (g) Any obligation or obligations liability arising out of litigation, claims, investigations or proceedings pertaining to the Business, whether or not set forth in any breach by Seller schedule hereto, or other litigation, claims, investigations, or proceedings relating in any predecessor or Affiliate of Seller of any of way to the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or Business arising out of, or relating to, an occurrence or any violation of lawevent happening prior to the Closing.
(h) Any obligation or liability pertaining to the Business based upon acts or omissions occurring prior to the Closing;
2.2.6 (i) Any claims, liabilities, liabilities and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part pertaining to employment or termination by Seller or the Business arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising or resulting from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or non-compliance prior to the time of Closing Date includingwith any national, without limitationregional, any claims against state or any liabilities for injury to or death of persons or damage to or destruction of propertylocal laws, any workers' compensation claimsstatutes, and any warranty claims.
2.2.8 Except as provided in Section 3.3ordinances, any accounts payablerules, other indebtednessregulations, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protectionorders, healthdeterminations, judgments, or safety laws directives, whether legislatively, judicially, or regulations administratively promulgated; and
(j) Payroll (including all related payroll taxes) and benefits (including medical or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, hospitalization insurance) for employees and liquid and gaseous matters by Seller and by contractors for any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions period ending on or prior to before the Closing Effective Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary(a) Sellers shall retain responsibility for performing when due, and Buyer does shall not assume or agree have any responsibility for, all liabilities of Sellers related to pay, satisfy, discharge or perform, the Business and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller Purchased Assets other than the Assumed Liabilities, including any (i) the ownership and operation of the following liabilities or obligations Business and the Purchased Assets prior to the First Closing; (ii) the ownership and operation of the Seller Second Closing Equity and Second Closing Facilities prior to the Second Closing; (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of iii) the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities ; (iv) the termination of any employees of Sellers who are not Transferred Employees; (v) Transferred Employees who do not report for work with Buyer upon the First Closing; and all kinds (federalvi) any liability relating to or arising out of any employment action or practice in connection with Seller’s employment or termination of employment of any persons currently or formerly employed or seeking to be employed by the Sellers, stateincluding liabilities based upon breach of employment contract, localemployment discrimination, wrongful termination, wage and foreign) of Seller hour compliance (including, without limitation, any liabilities for taxes on employee classification, overtime and minimum wage obligations), independent contractor classification, health and safety requirements, immigration and/or worker authorization requirements, disability accommodation and leave laws, workers’ compensation, constructive termination, failure to give reasonable notice or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result pay in lieu of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefitsnotice, severance benefitsor termination pay or the Consolidated Omnibus Budget Reconciliation Act, retirement benefitsas amended, COBRA benefitsthe Employee Retirement Income Security Act of 1974, FAMLA benefitsas amended, WARN obligations and liabilitiesthe Worker Adjustment Retraining Notification Act of 1988, as amended, the Fair Labor Standards Act, as amended, or the National Labor Relations Act, as amended, or any other employee benefitsequivalent state, withholding tax liabilitiesmunicipal, workers' compensationcounty, or unemployment compensation benefits or premiumslocal, hospitalization or medical claims, occupational disease or disability claims, foreign or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit PlansApplicable Law.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation (b) For the purposes of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees liabilities described in Section 1.4(a) and expenses of Seller's attorneys, accountants, consultants and brokersSection 1.4(b) shall collectively be the “Retained Liabilities”).
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained Subject to Clauses 5.22 and 6.8, and other than as specifically listed in this -------------------- Agreement Section 2.3 above, Buyer shall assume no obligation whatsoever of Seller or any Seller Entity, whether or not arising from or related to the contrary, Buyer does not assume or agree Business prior to pay, satisfy, discharge or performthe Closing Date (the “Retained Liabilities”), and will not Seller shall or shall cause a Seller Entity to pay and perform each such Retained Liability as and when due. Without limiting the generality of the foregoing, the Retained Liabilities shall include, and under no circumstances shall Buyer be deemed by virtue to assume any Liability of Seller or any Seller Entity arising out of or relating to:
(a) any actual tortious conduct of Seller, any Seller Entity, or any of their respective employees or agents relating to the operation of the execution and delivery Business prior to the Closing Date;
(b) any product liability claim arising out of this Agreement a product sold or disposed of by Seller or any document delivered at Seller Entity prior to the execution Closing Date;
(c) any claim for breach of warranty or contract by Seller or any Seller Entity prior to the Closing Date, but not any warranty obligation for which reasonable provision has been made on the Closing Balance Sheet;
(d) any claim predicated on strict liability or any similar legal theory based on acts, omissions, events or circumstances prior to the Closing Date;
(e) any actual violation of any Law relating to the operation of the Business occurring prior to the Closing Date;
(f) any business or business activities of Seller or any Seller Entity that are not part of the operation of the Business;
(g) any Liability for Taxes of any kind or character of Seller or any Seller Entity that relate to any Pre-Closing Tax Period;
(h) any Excluded Asset;
(i) the Seller Employee Plans or any other item listed on Schedule 5.15;
(j) all collective bargaining agreements in effect between Seller or any Seller Entity and any labor organization covering employees of Seller or any Seller Entity engaged in the Business, if any;
(k) any Environmental Liability relating to or arising out of any pre-Closing Environmental Condition, including, but not limited to, those listed on Schedule 5.13; or
(l) any Liability of Seller or any Seller Entity under or arising by reason of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitationlegal and accounting fees and expenses. Notwithstanding any other provision of this Agreement, the fees obligations of Seller and expenses of Seller's attorneys, accountants, consultants the Seller Entities with respect to all Liabilities other than the Assumed Liabilities shall survive the Closing and brokersthe transactions contemplated by this Agreement.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Except for the liabilities that Buyer is expressly agreeing to the contraryassume pursuant to Section 1.4, Buyer does is not assume or agree assuming and shall have no obligation to pay, satisfyperform or discharge any debts, discharge or performliabilities, claims and obligations relating to Sellers' conduct of the Business prior to the Closing Date, including without limitation: (a) any payment obligations from and after the Closing Date to Asset Seller Employees who do not become Transferred Employees, including severance arrangements, and will not be deemed by virtue of the execution retention bonuses payable to Asset Seller's employees set forth in Schedule 4.19(b) and delivery of this Agreement or any document delivered at obligation to the execution of this AgreementCompanies' employees resulting from any measures taken prior to the Closing Date, or including as a result of the consummation of the transactions contemplated by this Agreementany social plans or redundancies, to have assumed, or to have agreed to pay, satisfy, discharge or perform, (b) any liability or obligation of the Asset Seller other than the Assumed Liabilitiesfor taxes of any kind (and any penalties or interest due on account thereof), including any tax liability and other related costs arising from the transfer by any of the following liabilities Companies of any Excluded Asset to the Seller or obligations any affiliated or parent company of the Seller Seller; (c) any liability or obligation with respect to any suits, actions, claims or proceedings pending or threatened on the Closing Date or which results from action taken prior to the Closing Date; (d) any long term debt, including short-term portions thereof, and intercompany liabilities; and (e) any liabilities related to employees, former employees, or Employee Plans (as defined in Section 4.19), including without limitation liabilities under the Xxxx-Xxxxx Retirement & Savings Plan through the Closing Date, except as expressly provided in Section 6.5 (collectively, the "Retained Liabilities"):
2.2.1 All obligations ). Asset Seller shall retain and shall timely pay, perform and discharge the Retained Liabilities. Furthermore, Buyer is not assuming and shall have no obligation to pay, perform or liabilities of Seller or discharge any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreementdebts, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claimscosts, liabilities, and expenses or obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to (a) any value added taxes or similar taxes currently owed or incurred by the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations Companies on or prior to the Closing Date including(the "VAT Taxes") or (b) any debts, without limitationcosts, any claims against or any liabilities for injury to or death of persons or damage to or destruction of propertyliabilities, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities expenses or obligations resulting from relating to the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller Sellers or the Stations, including, without limitation, any liability Companies' employee stock options or obligation for cleaning up waste disposal sites from similar equity instruments outstanding or related proposed or committed to acts or omissions be issued on or prior to the Closing Date.
2.2.10 Any fees Date (the "Option Obligations"). Asset Seller shall assume, retain and pay all debts, costs, liabilities, expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement or obligations related to the VAT Taxes or the Option Obligations and the transactions contemplated by this Agreement, including, without limitation, VAT Taxes and Option Obligations shall be part of the fees and expenses of Seller's attorneys, accountants, consultants and brokersRetained Liabilities.
Appears in 1 contract
Samples: Purchase Agreement (Ziff Davis Inc)
Retained Liabilities. Notwithstanding anything contained in this Buyer and ARC agree that, except for -------------------- Agreement the Assumed Liabilities, Buyer is not assuming, and ARC shall remain fully liable for, all of its liabilities and obligations relating to the contraryproperty, Buyer does not assume assets, business and operations of ARC (collectively, the "Retained Liabilities"), including, without limitation, the following:
(i) all liabilities for any income, gain, profit or agree to paysimilar tax arising out of or resulting from the sale, satisfyconveyance, discharge or performtransfer, and will not be deemed by virtue of the execution assignment and delivery of this Agreement or any document delivered at the execution of Subject Assets provided for in this Agreement;
(ii) all Taxes (as defined in Section 2.8(a)) imposed on, or with respect to, the business of ARC;
(iii) all liabilities and obligations of ARC in respect of accounts payable, accrued expenses, accrued employee obligations and other current liabilities arising out of the operation of ARC's business;
(iv) all liabilities and obligations of ARC for indebtedness for borrowed money;
(v) all liabilities and obligations of ARC in connection with or relating to any of ARC's existing or former employees, employee benefit plans, employee insurance policies, severance or other termination obligations, accrued vacations, accrued and unpaid wages, salaries, bonuses, commissions and sick pay or other employment related matters, including, without limitation, all liabilities and obligations (whether fixed or contingent) with respect to any employment benefit program or plan as a result of the consummation of the transactions contemplated by this Agreement, as required by Austrian law or otherwise, and all liabilities of ARC under sales representative or similar agreements or arrangements pursuant to have assumedwhich any person or entity may be entitled to a commission on account of revenues booked or earned prior to the Closing Date; provided, however, that in no event is -------- ------- Buyer assuming any liabilities with respect to any employees terminated prior to the Closing Date or to have agreed to pay, satisfy, discharge any severance or perform, other termination obligations or any liability under any pension, profit sharing, 401(k) or similar employee benefit plan;
(vi) all liabilities and obligations of ARC to third parties arising out of any breach by ARC prior to the Closing Date of any representation, warranty, covenant or indemnification obligation of the Seller ARC under any Assigned Contract or Assigned Permitted or other than the Assumed Liabilities, including any of the following right assigned hereunder;
(vii) all liabilities or and obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any arising in respect of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax (viii) all liabilities of any for retrospective or similar insurance premium adjustments and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or sickness compensable under ARC's insurance plans arising prior to the Closing Date.; and
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating(ix) all other liabilities of ARC that are attributable to or arise from facts, preparingevents or conditions that occurred or came into existence prior to the Closing Date, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, including without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokersany intellectual property indemnification obligations.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement At Closing, Seller shall retain all liability for, and Buyer shall not have any obligation or liability concerning the following (collectively, the “Retained Liabilities”):
(1) any liabilities under any Contracts, to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, extent such liabilities are due and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or payable prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees liability for the payment of any amounts due and payable prior to the Closing Date under any Contracts;
(2) any liabilities under the Declaration as owner of the Property to the extent such liabilities are due and payable prior to the Closing Date, including, without limitation, the liability for the payment of any amounts due and payable prior to the Closing Date under the Declaration as owner of the Property;
(3) any liabilities under the Development Agreement dated October 26, 1998 and recorded August 6, 1999 in the Official Records of San Mateo County, California (the “Development Agreement”), excluding any expenses or other liabilities under the Declaration that are described or referenced in, or defined by reference to, the Development Agreement (including but not limited to obligations under Section 9.20 of Seller's attorneysthe Declaration), accountantsprovided, consultants however, that neither Seller nor Buyer is hereby asserting that there are now or hereafter any liabilities under the Development Agreement other any liabilities under the Declaration that are described or referenced in, or defined by reference to, the Development Agreement;
(4) any claim for personal injury or property damage which is based on any event that occurred prior to the Closing Date either at the Real Property or in connection with the Property;
(5) any damages (including costs of cleanup, containment or other remediation) arising from or in connection with any environmental, health or safety liabilities arising out of or relating to (i) the ownership or operation of the Property by Seller prior to the Closing Date, or (ii) any bodily injury (including illness, disability and brokersdeath, regardless of when any bodily injury manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any person or any assets in any way arising from or allegedly arising from any hazardous activity conducted by Seller with respect to the Property.; and
(6) any pending litigation against Seller or litigation filed against Seller after Closing pertaining to the Retained Liabilities. Notwithstanding the foregoing or anything to the contrary contained in this Agreement or in any other document contemplated herein or executed in connection herewith, Seller and Buyer hereby acknowledge and agree that in no event shall Seller have any liability or obligation (as a Retained Liability or otherwise) with respect to matters for which the “Lessee” under any Tenant Lease is responsible or liable (including but not limited to any payment or reimbursement obligations of the “Lessee” under the Tenant Leases).
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does is not assume or agree to pay, satisfy, discharge or perform, assuming and will not be deemed by virtue perform any liabilities or obligations not specifically described in Section 1.4 or any of the execution following obligations or liabilities, to the extent not set forth in Section 1.4:
(a) Any obligation or liability of the Company for Taxes (as defined in Section 3.12 hereof) of any kind or nature whether or not incurred prior to the date hereof, including without limitation, any Taxes based on or measured by any income or gain realized upon transfer of any of the Acquired Assets hereunder;
(b) any obligation or liability for services rendered by the Company;
(c) any accounts payable, obligations or liability to pay for any products, goods, raw materials or services delivered or provided to the Company pertaining to the Retained Business or pertaining to the Business and delivery not accrued as of this Agreement the Closing Date and more than 90 days old;
(d) any liability or obligation of the Company for or in respect of any document delivered loan, or indebtedness, including third party indebtedness;
(e) any liability or obligation of the Company arising as a result of or out of any claim, any legal or equitable action, proceeding or investigation pertaining to or relating in any way to the Company initiated at any time, whether or not described in any schedule hereto;
(f) any obligation or liability upon acts or omissions of the execution Company;
(g) any liability or obligation of the Company incurred in connection with the making or performance of this Agreement;
(h) any liability or obligation of the Company arising out of any plan, program, policy, practice, contract, agreement or other arrangement, whether or not subject to Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether formal or informal, oral or written, providing for compensation, severance termination pay, performance awards, profit sharing, bonus, stock option, stock purchase, restricted stock, equity-based compensation, deferred compensation, change-in-control, pension, retirement, medical, dental, life insurance, disability, education reimbursement, sick pay, paid vacation (other than Rollover Vacation Time (as defined in Section 6.4(b)), fringe benefits or other employee benefits of any kind, including, without limitation any “employee benefit plan”, within the meaning of Section 3(3) of ERISA that is sponsored, contributed to or maintained by the Company for the benefit of current or former employees of the Company or with respect to which the Company may have any liability (contingent or otherwise) or the termination of any such plan, program, policy, practice, contract, agreement or other arrangement;
(i) any liability or obligation of the Company for making payments of any kind (including as a result of the sale of the Acquired Assets or as a result of the consummation termination of employment by the Company of employees or other labor claims) to employees of the transactions contemplated by this AgreementCompany or in respect of payroll taxes for employees of the Company, including without limitation any liabilities or obligations of the Company arising under or with respect to the Consolidated Omnibus Budget Reconciliation Act of 1985, to have assumedthe extent required, or and limited, under Treasury Regulation Section 54.4980B-9, Q&A, and including the obligation of the Company to have agreed pay vacation time to pay, satisfy, discharge or perform, the extent provided in Section 6.1;
(j) any liability or obligation of the Seller Company under or with respect to any lease, contract, arrangement or commitment (other than such liabilities or obligations that are included in the Assumed Liabilities);
(k) any liability or obligation of the Company arising out of or resulting from non-compliance with any national, regional, state or local laws, statutes, ordinances, rules, regulations, orders, determinations, judgments, or directives, whether legislatively, judicially, or administratively promulgated, including without limitation any such law, statute, ordinance, rule, regulation, order, determination, judgment or directive relating to occupational health and safety or pollution or protection of the environment (“Environmental Law”);
(l) any liability of the Company to indemnify any Person (including any of the following liabilities or obligations Stockholders) by reason of the Seller fact that such Person was a director, officer, employee or agent of the Company or was serving at the request of the Company as a partner, trustee, director, officer, employee, or agent of another entity;
(the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or m) any predecessor or Affiliate of Seller which relate liability with respect to (i) any statutory liens on any of the Excluded Acquired Assets for current Taxes, assessments or other governmental charges or (ii) any mechanics’, carriers’, workers’, repairers’ and similar liens on any of the Acquired Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of (n) any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result liability of the transfer of Company under the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.Excluded Contracts; or
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, o) any liability or obligation for cleaning up waste disposal sites from or of the Company related to acts or omissions on or prior to the Closing DateRetained Business.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement At Closing, Sellers shall retain all Liabilities for, and Purchaser shall not have any obligation or Liability concerning:
(a) any Liabilities under the Tenant Leases, Contracts, and Licenses and Permits which have arisen, accrued or pertain to a period prior to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerClosing Date, including, without limitation, liabilities the Liability for wagesthe payment of any amounts due and payable or accrued but not yet due or payable prior to the Closing Date under the Tenant Leases, supplemental unemployment benefitsContracts, vacation benefitsand Licenses and Permits; and
(b) the payment of all Taxes and assessments due and payable or accrued but not yet paid prior to the Closing Date, severance benefitsexcept to the extent Purchaser has received a credit for such Taxes and assessments under Article 9; and
(c) the employment and employment benefits of any Employees, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or including the payment of any other employee benefits, withholding tax liabilities, workers' compensation, accrued paid time off, sick time, personal days and any amounts accrued under any employee benefit or unemployment compensation benefits welfare plan of Sellers; and
(d) any claim for personal injury or premiumsproperty damage to a Person which is based on any event which occurred at the Real Property or in connection with the Businesses prior to the Closing Date; and
(e) any damages (including costs of cleanup, hospitalization or medical claims, occupational disease or disability claims, containment or other claims attributable in whole remediation) arising from or in part to employment connection with any environmental health or termination by Seller or safety liabilities arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to (i) the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, ownership or expenses relating to operation by any litigation, proceeding, or investigation of Person at any nature arising out of the operations of the Stations time on or prior to the Closing Date includingof the Assets, without limitationor (ii) any bodily injury (including illness, disability and death, regardless of when any claims against bodily injury occurred, was incurred or manifested itself), personal injury, property damage (including trespass, nuisance, wrongful eviction and deprivation of the use of real property) or other damage of or to any Person or any liabilities for injury assets in any way arising from or allegedly arising from any hazardous activity conducted by any Person with respect to the Assets, that was present or death of persons suspected to be present on or damage before the Closing Date on or at the Real Property (or present or suspected to or destruction of be present on any other property, if such Hazardous Material emanated or allegedly emanated from any workers' compensation claimsproperty and was present or suspected to be present on the Real Property, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date), or was released or allegedly released by any Person on, at, or about the Assets at any time on or prior to the Closing Date; and
(f) any actual, pending or threatened litigation as set forth on Schedule 2.4(f) (collectively, all items contained in this Section 2.4 being the “Retained Liabilities”). The rights and obligations of the Parties under this Section 2.4 shall survive the Closing.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (CNL Healthcare Trust, Inc.)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Each Asset Seller acknowledges and agrees that pursuant to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, terms and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution provisions of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumedBuyers will not assume, or to have agreed become liable to pay, satisfy, discharge perform or performdischarge, any liability Liability or obligation of the Seller any Asset Seller, other than the Assumed Liabilities. In furtherance and not in limitation of the foregoing, including neither Buyers nor any of the following liabilities their Affiliates shall assume, and shall not be deemed to have assumed, any debt, Claim, obligation or obligations other Liability of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of any Asset Seller or any predecessor of its predecessor(s) or Affiliate Affiliate(s) whatsoever (other than the Assumed Liabilities), including, but not limited to the following (collectively, the “Retained Liabilities”):
2.3.1 Tax Liabilities for periods or portions thereof ending on or before the Closing Date including deferred Taxes of Seller which relate any nature;
2.3.2 Any Liability of Sellers for administrative fees and expenses under Section 503(b) of the Bankruptcy Code, professional fees or expenses under Sections 328, 330 or 331 of the Bankruptcy Code, or any other fees or expenses associated with administration of the Filing Affiliates’ Bankruptcy Cases;
2.3.3 Liabilities related to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant 2.3.4 Liabilities with respect to other provisions of this Transferred Asset Seller Employees for periods or portions thereof ending prior to the Closing Date except to the extent specifically provided for in Section 6.6 or the applicable Transfer Agreement, tax liabilities of any and all kinds ;
2.3.5 All Products Liability for Products manufactured before Closing (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined“Retained Products Liability”);
2.2.4 All liabilities 2.3.6 Any amounts owing to Delphi, the Sellers or the Affiliates of Delphi by the Business (including intercompany trade payables) as of the Closing Date;
2.3.7 Except as expressly provided in this Agreement or any Ancillary Agreement, Liabilities under or that relate to (i) any Seller Employee Benefit Plan or any other employee benefit plan of any member of the Sellers’ Controlled Group, (ii) employment and employee benefits-related Claims, obligations and Liabilities of former employees arising at any time and relating to their employment with Seller prior to Closing, and (iii) employment and employee benefits-related Claims, obligations and Liabilities of Transferred Employees, in each case incurred in relation to the employee’s period of employment with the Seller prior to and including the Closing Date;
2.3.8 Any Liability arising out of any breach by Seller or any predecessor or Affiliate of Seller of any Proceeding relating to a Retained Liability which is pending as of the terms or conditions of any provision of any Real Estate Lease or ContractClosing Date;
2.2.5 All liabilities and obligations 2.3.9 Except as expressly provided in Section 2.2, any Liability of Seller or any predecessor or Affiliate of Seller resulting from, caused by or the Asset Sellers arising out of, any violation of lawrelating to, or incurred in connection with the businesses retained by the Asset Sellers and which are not arising out of, relating to or incurred in connection with the Business;
2.2.6 Any claims2.3.10 All Debt Obligations of the Asset Sellers (other than (i) Accounts Payable assumed by Buyers pursuant to Section 2.2.3 hereof, liabilities(ii) Debt Obligations listed on Schedule 6.12, and obligations (iii) Debt Obligations otherwise addressed through the Purchase Price adjustment and reflected on the Final Statement of Seller as an employer, including, without limitation, liabilities Cash and Debt);
2.3.11 Any and all Environmental Claims for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations Environmental Damages with respect to Pre-Closing Environmental Contamination and liabilities, or Pre-Closing Compliance Matters (the “Retained Environmental Liabilities”);
2.3.12 All Liabilities of the Asset Sellers arising under any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses Contracts relating to any litigation, proceeding, or investigation of any nature arising out of Retained Liabilities;
2.3.13 All Cure Amounts for Contracts included in the operations of the Stations Acquired Assets;
2.3.14 Accounts payable incurred on or prior to the Petition Date;
2.3.15 All Product Warranty Liabilities for Products manufactured before Closing Date including, without limitation, any claims against or any liabilities (“Retained Product Warranty Liability”); and
2.3.16 All Claims made before Closing for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claimsInsured Liabilities (“Retained Insured Liabilities”).
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contraryBuyer shall not assume, Buyer does not assume or agree to and Seller shall retain and pay, satisfyperform and discharge when due, discharge or perform, and will not be deemed by virtue all of the execution liabilities and delivery obligations, of this Agreement every kind and nature, relating to or any document delivered at arising from the execution following (collectively, the “Retained Liabilities”):
(a) all obligations of this Agreement, or as a result of Seller under the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed LiabilitiesBonds, including any obligations under any related letters of credit, bonds and other surety instruments, reimbursement agreements and other agreements related to the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded AssetsBonds;
2.2.2 Other (b) Taxes (other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreignTransaction Taxes) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities Business for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions periods on or prior to the Closing Date.;
2.2.10 Any fees (c) all liabilities or obligations of Seller related to the Excluded Assets, in each case whether arising before, on or after the Closing Date;
(d) all obligations and expenses incurred by liabilities related to the Pension Plan and the Defined Contribution Plan;
(e) any Indebtedness and any guarantees of Indebtedness;
(f) Proceedings based on conduct, operation, actions, inaction, facts, circumstances, conditions or otherwise related to the Business, including Proceedings arising from or related to any other Assumed Liability, but solely to the extent any such Proceeding (i) arises out of events occurring before the Closing Date and (ii) falls within the scope of the Political Subdivision Tort Claims Act of Pennsylvania as of the date hereof;
(g) all obligations and liabilities of Seller under or in connection with negotiatingthis Agreement, preparingthe Related Documents, closingany certificate or other document delivered in connection herewith or therewith, and carrying out this Agreement and any of the transactions contemplated hereby and thereby, that by this Agreementtheir terms expressly survive the Closing Date; and
(h) all interest rate or other swaps, includinghedging agreements, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokersor derivative transactions.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Each of the Parties acknowledges and agrees that Purchaser is not agreeing to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, become liable for (and will not be deemed by virtue Purchaser hereby expressly disclaims any liability for) any Liability of the execution and delivery of this Agreement Seller or any document delivered at the execution of this Agreementits Affiliates or Representatives, however or as a result of the consummation of the transactions contemplated by this Agreementwhenever arising, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than excepting only the Assumed Liabilities, including any of the following liabilities or obligations of the Seller . All such unassumed Liabilities (the "Retained Liabilities"):) are being retained by Seller, and Seller shall pay, perform or otherwise discharge all Retained Liabilities as they become due. Retained Liabilities include the following:
2.2.1 All obligations or liabilities (a) all of Seller's Liabilities under the Transaction Documents;
(b) all trade accounts payable of Seller;
(c) all Liabilities of Seller for expenses or fees incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or any predecessor other Transaction Document, or Affiliate of Seller which relate to any the consummation (or preparation for the consummation) of the Excluded Assetstransactions contemplated hereby or thereby (including all attorneys' fees and financial or other advisory fees);
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of (d) all Liabilities for (i) any and all kinds (federal, state, local, and foreign) local or other Taxes of Seller including, without limitation, any liabilities for taxes (including Taxes which are imposed on or measured by incomethe revenue, liabilities income or profits of Seller for withheld federal and state income taxes and employee F.I.C.A. any taxable period), (Federal Insurance Contribution Actii) or employer F.I.C.A., and liabilities for income taxes arising any Taxes imposed on Seller as a result of the transfer transactions contemplated hereby, (iii) any Taxes related to the Purchased Assets or the Business that were incurred in or that are attributable to any taxable period (or portion thereof) ending on or before the Closing Date ("Pre-Closing Tax Period"), (iv) Taxes resulting from being a member of an affiliated group filing or filing an affiliated, consolidated combined or unitary Tax Return, and (v) Taxes of any Person under Section 1.1502-6 of the Station Assets Treasury Regulations (or otherwise any similar provision of state, local, or foreign Law), as a transferee or successor, by virtue contract, or otherwise;
(e) all Liabilities to customers or third parties with respect to services performed by Seller prior to the Closing, without regard to (i) the basis or theory of claim (including negligence, tort, breach of express or implied warranty, failure to warn, test, inspect or instruct , infringement, fraud or otherwise), (ii) the nature of the damages sought (property damage, economic loss, personal injury, wrongful death or other), or (iii) whether the claim arose or is asserted before or after the Closing;
(f) all Liabilities arising out of any labor or related agreement, or any employment or labor relationship, between Seller and any of its Employees (regardless of when first known or asserted) , including (i) all Liabilities relating to any grievance or claim of the Employee, or any Employee Plan sponsored or maintained by Seller or its Affiliates at any time or to which Seller or its Affiliates has made contributions or has a liability, (ii) all severance claims of any Employee (including such claims relating to or resulting from the consummation of the transactions contemplated hereby.
2.2.3 All liabilities ), all workers' compensation or obligations of Equal Employment Opportunity Commission ("EEOC") claims, demands, investigations or proceedings or any other claim for compensation due from Seller owed to an Employee, (iii) all Liabilities relating to any of Seller or its Affiliates independent contractors and related misclassification issues under any Applicable Law arising before Closing, and (as hereinafter defined)iv) all Liabilities with respect to all Employees with respect to all periods prior to the Closing Date;
2.2.4 All liabilities or obligations (g) all Liabilities arising out by reason of any breach violation or alleged violation by Seller or any predecessor or Affiliate of Seller of any of the terms Applicable Law or conditions any requirement of any provision of any Real Estate Lease or ContractGovernmental Authority;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating (h) all Liabilities under Assumed Contracts to the Employee Benefit Plans.
2.2.7 Any claimsextent such Liabilities are not Assumed Liabilities, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature including those arising out of the operations consummation of the Stations on or prior to the Closing Date including, without limitationClosing, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with perform, improper performance, breach of warranty or imposed pursuant to any environmental protectionother breach, health, default or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions violation occurring on or prior to the Closing Date.;
2.2.10 Any fees (i) all Liabilities arising under Environmental Law and relating to or arising out of any acts or omissions of Seller prior to the Closing, with respect to the Purchased Assets, including any such Liability relating to or arising from (i) any Real Property or any other real property presently or formerly owned, operated or leased by Seller, (ii) the off-site transportation, disposal or arranging for the off-site disposal of any Hazardous Materials, (iii) the Release of Hazardous Materials in, at, on, under, from or emanating from the Real Property or any other real property presently or formerly owned, operated or leased by Seller, or (iv) the actual or alleged violation of any Environmental Law;
(j) all Liabilities of any Person arising out of or relating to the distribution, allocation and payment of any part of the Purchase Consideration in the manner directed by Seller;
(k) all Indebtedness of Seller, and any Lien or Liabilities related thereto, given in connection therewith, or arising therefrom, which is not an Assumed Liability;
(l) all retrospective premium adjustment, audit premium adjustment, experience-based liability, loss sharing cost adjustment or self-insured retention risk (including liability to reimburse Employees for health services rendered prior to Closing) with respect to any Seller Insurance Policies;
(m) the prorated share of any ad valorem Taxes with respect to the Purchased Assets for Pre-Closing Tax Periods as described in Section 2.3;
(n) all liabilities under and with respect to any Office Leases, Management Agreements, and Contracts of Seller that are not assumed by Purchaser;
(o) all liabilities, costs, expenses incurred and obligations under and with respect to every plan, program or arrangement which Seller currently sponsors, maintains or contributes or is bound to on behalf of Employees for:
(i) defined benefit or defined contribution retirement benefits;
(ii) stock purchase or ownership; executive compensation, including deferred compensation or equity participation;
(iii) bonus, commission, profit-sharing and other incentive compensation;
(iv) vacation, sick and other paid and unpaid leave;
(v) short-term or long-term disability benefits;
(vi) death benefits;
(vii) health care benefits;
(viii) severance, salary continuation or other termination pay benefits;
(ix) employee assistance benefits; and
(x) each other material employee benefit, including without limitation each "employee benefit plan" within the meaning of Section 3(3) of ERISA, that is established, maintained, adopted, sponsored , or contributed to, by Seller for the benefit of or relating to any Employees or their dependents, survivors, or beneficiaries, whether or not in connection with negotiating, preparing, closing, writing and carrying out this Agreement for which Seller could have liabilities (whether provided through insurance or otherwise); and all of the transactions contemplated by this Agreement, including, without limitation, foregoing are hereinafter collectively referred to as "Employee Plans; and
(p) all Liabilities in respect of any of the fees and expenses of Seller's attorneys, accountants, consultants and brokersExcluded Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Vinebrook Homes Trust, Inc.)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contraryBuyer shall not assume, Buyer does not assume or agree to and Seller shall retain and pay, satisfyperform and discharge when due, discharge or perform, and will not be deemed by virtue all of the execution liabilities and delivery obligations, of this Agreement every kind and nature, relating to or any document delivered at arising from the execution following (collectively, the “Retained Liabilities”):
(a) all obligations of this Agreement, or as a result of Seller under the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed LiabilitiesBonds, including any obligations under any related letters of credit, bonds and other surety instruments, reimbursement agreements and other agreements related to the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded AssetsBonds;
2.2.2 Other (b) Taxes (other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreignTransaction Taxes) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities Business for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions periods on or prior to the Closing Date.;
2.2.10 Any fees (c) all liabilities or obligations of Seller related to the Excluded Assets, in each case whether arising before, on or after the Closing Date;
(d) all obligations and expenses incurred by liabilities related to the Pension Plan and the Defined Contribution Plan;
(e) any Indebtedness and any guarantees of Indebtedness;
(f) Proceedings based on conduct, operation, actions, inaction, facts, circumstances, conditions or otherwise related to the Business, including Proceedings arising from or related to any other Assumed Liability, but solely to the extent any such Proceeding
(i) arises out of events occurring before the Closing Date and (ii) falls within the scope of the Political Subdivision Tort Claims Act of Pennsylvania as of the date hereof;
(g) all obligations and liabilities of Seller under or in connection with negotiatingthis Agreement, preparingthe Related Documents, closingany certificate or other document delivered in connection herewith or therewith, and carrying out this Agreement and any of the transactions contemplated hereby and thereby, that by this Agreementtheir terms expressly survive the Closing Date; and
(h) all interest rate or other swaps, includinghedging agreements, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokersor derivative transactions.
Appears in 1 contract
Samples: Asset Purchase Agreement
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Subject to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution terms of this Agreement, the Buyer (or as a result of the consummation of Sub if designated by the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of Buyer) shall not assume and the Seller other than or the Assumed LiabilitiesSeller Shareholders, including any of as applicable, shall retain all the following liabilities or and obligations of the Seller or the Seller Shareholders, as applicable not specifically assumed by the Buyer (or the Sub if designated by the Buyer) in Section 1.2, including without limitation, the following (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and (a) all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates Taxes (as hereinafter defined);
2.2.4 All liabilities ) attributable to or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating related to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, Business or expenses relating to any litigation, proceeding, the Acquired Assets for all taxable periods (or investigation of any nature arising out of the operations of the Stations portions thereof) ending on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death Taxes incurred as a result of persons or damage to or destruction of property, any workers' compensation claims, the transactions contemplated by this Agreement and any warranty claims.
2.2.8 Except the Preclosing Transactions (as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from hereinafter defined) and all Taxes imposed upon the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, Seller Shareholders for any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.taxable period;
2.2.10 Any (b) all costs and expenses (including legal fees and expenses expenses) incurred by Seller in connection with negotiatingwith, preparingor in anticipation of, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, hereby including, without limitation, the fees and expenses of Seller's attorneysBooth Capital Corporation and Xxxxx Xxxxxx (collectively, accountants, consultants the "Seller Financial Advisor") and brokersthe Preclosing Transaction Expenses (as hereinafter defined);
(c) all liabilities and obligations of the Seller in connection with the Shareholders' Agreement and the promissory note payable to Preis by the Seller in the amount of $390,000 listed in Section 2.17 of the Seller Disclosure Schedule;
(d) the Retained Employment Contracts; and
(e) the Retained Insurance Policies.
Appears in 1 contract
Retained Liabilities. Except for the Assumed Liabilities, Buyer shall not assume any Liabilities of Seller, whether arising before, on or after the Closing Date, and all such Liabilities (collectively the “Retained Liabilities”) shall remain the exclusive Liabilities of Seller. Notwithstanding anything contained to the contrary set forth in this -------------------- Agreement Agreement, the Assumed Liabilities shall not include, and the Retained Liabilities shall include, but not be limited to, any Liability for (i) that certain TD Bank Revolving Term Note, by and between TD Bank, N.A. and Seller, and the associated loan documents (collectively, the “TD Bank Loan”); (ii) Taxes arising as a result of or with respect to the contraryBusiness or the Purchased Assets with respect to any taxable period or portion thereof ending prior to the Closing Date (for this purpose, Buyer with respect to Taxes, if any, reported on a periodic basis for a period that includes, but does not assume end on, the Closing Date, such Taxes shall be allocated ratably on a daily basis); (iii) any Taxes of Seller or agree its Members, including Transfer Taxes arising out of or in connection with the transactions contemplated by this Agreement; (iv) any Liabilities or obligations arising on or prior to paythe Closing Date in regards to social security contributions and benefits (whether regular or increased), satisfyincome Taxes and in respect of any employee benefit plans now or formerly maintained or utilized by Seller (including without limitation any liabilities arising under any Benefit Plan, discharge regardless of when such liability accrues) as well as any liabilities and obligations in regards to any self-employed contractor or performleased employees/agency workers; (v) any Liabilities or obligations of Seller arising in respect of any of its employees’ prior status as independent contractors, including without limitation, any liability for Taxes or any payroll withholdings that could be claimed by Governmental Authorities in respect of such employees; (vi) any Liability or obligations of Seller arising out of its dispute and subsequent lawsuit with Uniter; (vii) any Liabilities or obligations respecting (x) Seller’s employees accrued vacation, paid time off, salary or bonus amount that are not Assumed Liabilities pursuant to Section 2.3(c), and will (y) amounts derived from any stock option plan of Seller, employee benefit or workers compensation claims, health care continuation claims under COBRA or any other employee or contractor classification claims; (viii) any Liabilities or obligations that are not be deemed by virtue Assumed Liabilities pursuant to Section 2.3(c) in respect of the execution employees or contractors of Seller which arise out of events occurring on or prior to the Closing Date, including, but not limited to, Liabilities and delivery obligations arising out of this Agreement events occurring on or prior to the Closing Date for violations of the Health and Safety at Work etc. Axx 0000, the Fair Labor Standards Act, the Occupational Safety and Health Act, 29 U.S.C. and any health and safety or workers compensation legislation applicable to such employees, any amendment thereto or regulation thereunder, ERISA, or any document delivered similar federal or state Laws as well as those prohibiting discrimination on the basis of race, sex or otherwise; (ix) all Liabilities of Seller to indemnify any Person in connection with the operation of the Business at or prior to Closing, whether arising out of contract, common law or otherwise; (x) all trade accounts payable of Seller to Third Parties in connection with the execution Business that remain unpaid as of this Agreementthe Closing Date and that are past due by more than thirty (30) days; and (xi) any Liabilities associated with any claims for benefits, workers’ compensation, severance, retention, termination or other payments due Transferred Employees in connection with, or as a result of of, the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation . Seller shall be responsible for all of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything to the contrary contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or in any document delivered at other agreement or instrument, other than as provided in the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller Headquarters Assignment and Assumption Agreement and other than the Assumed Liabilities, including Buyer shall not assume or be liable with respect to any liability or obligation of the following liabilities Seller or obligations its Affiliates of the Seller whatever nature (collectively, the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local), and foreign) of Seller includingand its Affiliates, without limitationas applicable, shall remain solely responsible and liable for all Retained Liabilities, including any liabilities for taxes on liability or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any obligation of Seller or its Affiliates relating to or arising from the following:
2.5.1 any Leases, including Canadian Retained Leases, other than the Acquired Leases;
2.5.2 any arrearages of Seller, including any arrearages relating to Canadian Retained Leases, other than those specifically set forth in Section 2.4.2;
2.5.3 any and all Taxes, whether imposed by Contract, Law or otherwise, other than as set forth in Section 6.1 and the Assumed Real Estate Taxes;
2.5.4 other than as set forth below in Section 6.4.2(b) with respect to the Transferred Employees, any and all employee obligations, including salary, bonus, equity, payroll taxes, benefits arising under Employee Benefit Plans, severance, accrued vacation, COBRA obligations and Contracts;
2.5.5 any escheat liability relating to Seller's operations;
2.5.6 all accounts payable, intercompany debt (as hereinafter definedincluding any intercompany debt between Seller and TCP or its Affiliates) and other liabilities;
2.5.7 any monthly rents and other amounts for the period from the Applicable Petition Date to the Applicable Closing (which amounts shall be paid by Seller when due);
2.2.4 All liabilities 2.5.8 any Retained Asset (including the Canadian Retained Stores), including any liability or obligations obligation arising out of a claim by any breach by Seller or party to any predecessor or Affiliate of Seller of any Contract that does not constitute an Acquired Asset arising out of the terms or conditions of any provision of any Real Estate Lease or determination not to transfer such Contract;
2.2.5 All liabilities and obligations of 2.5.9 any Action arising against Seller or at any predecessor or Affiliate of Seller resulting fromtime; provided, caused by however, that, with respect to any Action relating to or arising out ofof the Acquired Assets or the USA Remaining Stores, the Retained Liabilities shall only include such Actions that relate to the operation of the Acquired Assets or the USA Remaining Stores prior to the Applicable Closing; and
2.5.10 any violation of law;
2.2.6 Any claimsclaim or assertion that Buyer has transferee liability (other than for the Assumed Liabilities) or successor liability, liabilitiesincluding for any Tax claims or Actions, and obligations of whether such claims or Actions are made by any Taxing authority where Seller as an employercurrently files Tax Returns or by any other Taxing authority in any other jurisdiction (whether located in the United States, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilitiesCanada, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Planscountry).
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Childrens Place Retail Stores Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does shall not assume or agree to in any way be liable for the payment, performance and discharge of any Liabilities of Seller except as specifically provided in Section 2.3. Without limiting the generality of the foregoing, Buyer shall not assume and Seller shall retain and shall punctually pay, satisfyperform and discharge when due, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations Liabilities of the Seller (collectively, the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of (a) any and all kinds Liabilities arising out of or relating to products of the Business to the extent manufactured (federali.e., statecarried in finished goods inventory) or sold prior to the Effective Time, local, including without limitation any and foreignall Liabilities arising from the use by Seller of asbestos or other Hazardous Materials in such products;
(b) any and all Liabilities under any Business Contract assumed by Buyer pursuant to Section 2.3(b) that arises after the Effective Time to the extent that such Liability arises out of Seller including, without limitationor relates to any Breach that occurred prior to the Effective Time;
(c) except to the extent taken into account in determining Net Asset Value, any liabilities and all Liabilities for taxes on or measured by incomeTaxes, liabilities for withheld federal and state income taxes and employee F.I.C.A. including (Federal Insurance Contribution Acti) or employer F.I.C.A., and liabilities for income taxes any Taxes arising as a result of the transfer Seller's operation of the Station Assets Business or otherwise by virtue ownership of the consummation Assets prior to the Effective Time, and (ii) any deferred Taxes of any nature;
(d) any and all Liabilities to the extent arising out of or relating to any violation of Occupational Safety and Health Laws by Seller in connection with the conduct of the transactions contemplated hereby.Business prior to the Effective Time;
2.2.3 All liabilities (e) any and all Environmental Liabilities to the extent arising out of or obligations relating to the operation of the Business prior to the Effective Time or the leasing, ownership or operation of real property used in connection with the Business prior to the Effective Time;
(f) any and all Liabilities under the Employee Plans or relating to payroll, vacation, sick leave, workers' compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits, severance or any other employee plans or benefits of any kind for Seller's employees of the Business or former employees of the Business or both, which is not taken into account in determining Net Asset Value;
(g) any and all Liabilities of Seller owed to any Affiliate of Seller;
(h) any and all Liabilities incurred by or on behalf of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, all legal fees, costs and disbursements payable in connection therewith; and
(i) any and all Liabilities of Seller other than the fees and expenses of Seller's attorneys, accountants, consultants and brokersAssumed Liabilities.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than Except for the Assumed Liabilities, including Seller shall retain all, and Buyer shall have no responsibility for any, of Seller's liabilities and obligations, whether or not relating to the Business or Acquired Assets, whether fixed, contingent or otherwise, and whether known or unknown (collectively, the "Retained Liabilities"). Without limiting the foregoing, Buyer shall not assume or be liable for and Seller shall indemnify Buyer against and hold Buyer harmless from any of the following liabilities or obligations of the Seller for (the i) environmental matters ("Retained LiabilitiesEnvironmental Matters"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates under Environmental Laws (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided defined in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply 5.1(f)) in connection with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handlingviolations, disposal, release of hazardous substancesevents, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation occurrences or releases that occurred or are attributable to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions period on or prior to the Closing Date.
2.2.10 Any fees and expenses ; (ii) liabilities incurred by Seller in connection with negotiatingthis Agreement, preparingthe transactions provided for herein and any other agreements contemplated hereby, closingincluding, without limitation, attorneys' and accountants' fees, and carrying expenses pertaining to the performance by Seller of its obligations hereunder; (iii) liabilities that relate to the Retained Assets; (iv) except for Assumed Liabilities, liabilities arising out this Agreement of the operation of the Business on or before the Closing; (v) payments, if any, to be made as a result of the purchase and sale of the Business of Seller to certain management personnel of Seller under certain retention and other similar agreements solely in respect to those obligations resulting from the transactions contemplated by this Agreement; (vi) all Federal, state and local franchise and income taxes of Seller, whether relating to periods before or after the transactions contemplated in this Agreement or incurred by Seller in connection with this Agreement 5 11 and the transactions provided for herein, including any liability for such taxes arising out of the inclusion of Seller in any group filing consolidated, combined or unitary tax returns or arising out of any transferee liability; (vii) liabilities with respect to workers' compensation or other employee related claims, including, without limitation, with respect to discrimination, wrongful termination and employee benefits of any kind arising from any facts or circumstances occurring prior to or on the fees Closing Date; (viii) the employment contracts of Richxxx Xxxxxxx, Xxanxxx Xxxxxxx xxx Michxxx Xxxns including, but not limited to, any and expenses all of Sellerthe employer's attorneys, accountants, consultants responsibilities under such contracts; and brokers(ix) any other liabilities of Seller not specifically assumed by Buyer hereunder.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement In connection with the conveyance of the Shares to the contraryBuyer, Buyer does not assume or agree to pay, satisfy, discharge or performSouthern shall retain all, and will Seller shall not be deemed by virtue of the execution obligated to pay any, liabilities and delivery of this Agreement or any document delivered obligations existing at the execution of this Agreement, Financial Information Date or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller accruing thereafter (other than the Assumed Liabilities), including any without limitation of the following liabilities or obligations generality of the Seller foregoing future payment and performance of obligations and liabilities existing as of such time or accruing on or after the Financial Information Date with respect to the following (collectively, the "“Retained Liabilities"):
2.2.1 All obligations or ”): (i) current liabilities consisting of Seller or any predecessor or Affiliate accounts payable and accrued payables of Seller which relate to any Southern, accrued payroll and vacation liabilities, accrued payroll taxes and withholdings, other miscellaneous current liabilities, short term lease liabilities and accounts payable of Southern as of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds Financial Information Date; (federal, state, local, and foreign) of Seller ii); performance following the Financial Information Date under the Contracts including, without limitation, any liabilities for taxes on or measured by incomelong term lease liabilities, liabilities for withheld federal and state income deferred CARES receipts; (iii) those obligations of Southern in respect of real property taxes and employee F.I.C.A. utilities as of and following the Financial Information Date; (Federal Insurance Contribution Activ) or employer F.I.C.A., and liabilities for income taxes arising as a result performance following the Financial Information Date of the transfer obligations under the Provider Agreements and Contracts with respect to obligations existing and/or incurred or occurring after the Financial Information Date; (v) obligations existing as of or arising after the Station Assets Financial Information Date under all permits, approvals, licenses, qualifications, registrations, or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All certifications; (vi) any liabilities or obligations to former employees of Seller owed to any under the Consolidated Omnibus Budget Reconciliation Act of Seller 1985, as amended (“COBRA”) accruing on the Financial Information Date or its Affiliates thereafter, (as hereinafter defined);
2.2.4 All liabilities or obligations arising out vii) all Physician Employment Agreements of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities Southern; and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and (vii) all obligations arising from or relating to operation of Trace Regional following the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Financial Information Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sunlink Health Systems Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does Purchaser shall not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to and shall have agreed to pay, satisfy, discharge or perform, any no liability or obligation with respect thereto, any other liabilities of the Seller other than the Assumed LiabilitiesCompany (collectively, including any of the following liabilities or obligations of the Seller (the "“Retained Liabilities"):
2.2.1 All obligations ”) including without limitation the following: (i) liabilities in respect of employment or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes services performed on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of prior to the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerClosing, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' in respect of agreements regarding compensation, or unemployment compensation benefits or premiumsseverance, hospitalization or medical claims, occupational disease or disability claims, or stock options and other benefits; (ii) product liability claims attributable in whole or in part to employment or termination the extent based on a defective design for Products designed by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or sold prior to the Closing Date except as expressly set forth in Section 2.1.4; (iii) existing litigation for which a claim has been made to or threatened in writing against Seller on or before the Closing Date; (iv) all Tax liabilities of Seller for all periods (but excluding any Tax liabilities allocated to Purchaser pursuant to Section 10.3 of this Agreement); (v) any liability or obligation of Seller for administrative fees and expenses, including, without limitation, any claims against or any liabilities for injury to or death arising under Section 503(b) of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, Bankruptcy Code; (vi) any liability or obligation of Seller for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any transaction fees and expenses incurred by Seller and fees and expenses payable to lenders, brokers, financial advisors, legal counsel, accountants and other professionals in connection with negotiatingthis Agreement; (vii) all Debt (as defined by Section 101(12) of the Bankruptcy Code) owed by Seller to any party; (viii) all Claims, preparingexcept for Assumed Liabilities; (ix) all liabilities to employees of Seller who are not Transferred Employees as defined in Section 3.1.3, closing(x) any amounts payable to Wireless Matrix USA, Inc. (“Wireless Matrix”) in connection with, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitationpursuant to, the fees termination of the Asset Sale and expenses of Purchase Agreement dated June 6, 2006 (the “Wireless Matrix Agreement”), between Wireless Matrix and Seller's attorneys, accountants, consultants and brokersor (xi) any liability or obligation not expressly assumed pursuant to Section 2.1 hereof.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contraryThe parties hereto expressly acknowledge and agree that, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than except for the Assumed Liabilities, including any of the following liabilities Purchaser shall not assume or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, localincur, and foreign) of Seller includingshall remain liable to pay, without limitationperform and discharge, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All all liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from(collectively, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerthe “Retained Liabilities”), including, without limitation, liabilities and obligations of Seller:
(A) for wagesTaxes owed by Seller to any Governmental Authority, supplemental unemployment benefits(B) arising out of or in any way connected with pending or threatened litigation, vacation benefitsresulting from or in any way connected with the operation of the Business prior to the Closing, severance benefitswhether or not disclosed to Purchaser (including the matters disclosed in Section 2.10 of the Disclosure Schedule), retirement benefits(C) for violation by Seller of any statute, COBRA benefitsordinance, FAMLA benefitsregulation, WARN order, judgment or decree, (D) all intercompany notes or other obligations and liabilitiesowed by Seller to Parent, Shareholder or any other employee benefitsAffiliate of Seller, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations (E) arising from or relating to any claims by or on behalf of present or former employees of Seller in respect of severance pay or benefits or termination pay or benefits and similar obligations relating to such employees’ employment with the Employee Business through the Closing Date or the termination of such employees’ employment with Seller, (F) under any Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, Plan of Seller; (G) arising from or expenses relating to any litigation, proceeding, Excluded Asset; (H) arising from or investigation of relating to any nature arising out of the operations of the Stations on debt or liabilities incurred by Seller prior to the Closing Date including, without limitation, any claims against not included in the Assumed Liabilities; (I) arising from or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant relating to any environmental protectionExcluded Employment Agreement (including without limitation the Retention Bonus Obligations); (J) arising from or relating to any of the obligations of Parent, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the StationsShareholder to Imperium Master Fund, includingLtd. (“Imperium”) or Wxxxx Fargo Bank, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing DateN.A. (“Wxxxx Fargo”) and (K) trade payables.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained Other than the Assumed Liabilities, neither Purchaser shall assume nor shall be liable for (and nothing in this -------------------- Agreement shall be construed as causing or requiring either Purchaser to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or performbe liable for), and will not be deemed by virtue Seller shall retain and remain solely liable for and obligated to discharge, all of the execution debts, liabilities, payables, commitments and delivery obligations of Seller of any kind or nature whatsoever, whether absolute or contingent, liquidated or unliquidated, secured or unsecured, and whether or not accrued, matured, known or suspected or unknown, whether or not related to or arising from the Transferred Assets, and whether existing on or arising after the Closing Date (collectively referred to as the “Retained Liabilities” and individually referred to as a “Retained Liability”). Retained Liabilities include, but are not limited to, (i) any obligations for borrowed money and any accrued interest, prepayment premiums or penalties related thereto (collectively, “Indebtedness”), (ii) costs and expenses of Seller incurred or to be incurred by it in connection with the negotiation and preparation of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of and carrying out the transactions contemplated by this Agreement, including legal, investment banker, accounting and other financial consultant fees and any compensation payable to have assumedSeller’s Agent (collectively, “Transaction Expenses”); (iii) any change in control payments, severance or other amounts required to have agreed be made by Seller in connection with the transactions contemplated hereby; (iv) any amounts payable to pay, satisfy, discharge Seller’s employees or perform, any liability or obligation of independent contractors for periods prior to the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any Closing and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed Closing as described in Section 6.6 below; (v) any losses due to any wrongful acts or omissions of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting fromofficers, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.directors,
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to The Buyer shall not at the contrary, Buyer does not Closing assume or agree to pay, satisfy, discharge or perform, pay or discharge, and will not be deemed by virtue the Company shall remain unconditionally liable for, all obligations, liabilities and commitments, fixed or contingent, known or unknown, of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller Company (other than the Assumed Liabilities), including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed related to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of i) any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerCompany's indebtedness, including, without limitation, the liabilities for wagescomprising the "Current Maturities of Debt" and "Debt, supplemental unemployment benefitsNet of Current Maturities" line items on the Balance Sheet of the Company dated March 31, vacation benefits1999 and attached hereto as Schedule 1.4(b) (the "Initial Asset/Liability Schedule"), severance benefits(ii) any litigation involving the Company, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, (iii) brokers or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out third parties acting on behalf of the operations Company in connection with the sale of the Stations Acquired Assets, (iv) any Employee Plan maintained by the Company on or prior to the Closing Date including, without limitation, and related to the Business; (v) any claims against Taxes which are or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, were due and any warranty claims.
2.2.8 Except as provided payable in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from connection with the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller Acquired Assets or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions Business on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller ; (vi) any claim arising from, relating to or made in connection with negotiatingany Environmental Law based on any event, preparing, closing, and carrying out this Agreement and action or inaction by the Company in connection with the Business or the Acquired Assets on or prior to the Closing Date; (vii) any Contract that is not an Assumed Contract; (viii) any payments to be made to employees or consultants of the Company related to the Business that are triggered by the transactions contemplated by this Agreementherein, including without limitation, golden parachute or golden handcuff payments; (ix) any liability related to the Company's real estate leases, including, without limitation, the fees current space utilized in connection with the Business; (x) the Employee Bonuses (as defined below); and expenses of Seller's attorneys, accountants, consultants and brokers(xi) any liability related to the Electronic Commerce Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Geac Computer Systems Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrarySeller shall retain each and every liability of Seller, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following those liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated assumed by Purchaser pursuant to other provisions of this AgreementSection 2.05(a), tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of or relating to the conduct of the Calder Mine Business prior to the completion of Closing, including but not necessarily limited to the following:
(i) any breach liability arising out of or relating to mineral products of Seller sold prior to the completion of Closing;
(ii) any liability for Taxes, including (A) any Taxes arising out of or resulting from Seller’s ownership of the Assets or Seller’s conduct of the Calder Mine Business prior to the completion of Closing, (B) any Taxes arising out of or resulting from the sale of the Assets pursuant to this Agreement (including Taxes on any imputed interest income deemed to be received by Seller or pursuant to Section 2.04(c)), and (C) any predecessor or Affiliate of Seller deferred Taxes of any of the terms or conditions of any provision of any Real Estate Lease or Contractnature;
2.2.5 All liabilities and obligations of Seller (iii) any liability under the Employee Plans or any predecessor or Affiliate of Seller resulting fromrelating to payroll, caused by or arising out ofvacation, any violation of law;
2.2.6 Any claimssick leave, liabilitiesworkers’ compensation, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation pension benefits, severance employee stock option or profit-sharing plans, health care plans or benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefitsplans or benefits of any kind for Seller’s employees or former employees or both;
(iv) any liability under any employment, withholding tax liabilitiesseverance, workers' compensationretention, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or agreement with any employee of Seller;
(v) any liability arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to any employee grievance whether or not the Employee Benefit Plans.affected employees are hired by Purchaser;
2.2.7 Any claims, liabilities, losses, damages, (vi) any liability arising out of or expenses relating to any litigation, proceeding, Occupational Safety and Health Laws or investigation of any nature arising out of the operations of the Stations on WARN Act or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to satisfy, meet, or comply with any of the same; and
(vii) any liability of Seller under this Agreement or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing DateOperative Document.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this Buyer and ARC agree that, except for the -------------------- Agreement Assumed Liabilities, Buyer is not assuming, and ARC shall remain fully liable for, all of its liabilities and obligations relating to the contraryproperty, Buyer does not assume assets, business and operations of ARC (collectively, the "Retained Liabilities"), including, without limitation, the following:
(i) all liabilities for any income, gain, profit or agree to paysimilar tax arising out of or resulting from the sale, satisfyconveyance, discharge or performtransfer, and will not be deemed by virtue of the execution assignment and delivery of this Agreement or any document delivered at the execution of Subject Assets provided for in this Agreement;
(ii) all Taxes (as defined in Section 2.8(a)) imposed on, or with respect to, the business of ARC;
(iii) all liabilities and obligations of ARC in respect of accounts payable, accrued expenses, accrued employee obligations and other current liabilities arising out of the operation of ARC's business;
(iv) all liabilities and obligations of ARC for indebtedness for borrowed money;
(v) all liabilities and obligations of ARC in connection with or relating to any of ARC's existing or former employees, employee benefit plans, employee insurance policies, severance or other termination obligations, accrued vacations, accrued and unpaid wages, salaries, bonuses, commissions and sick pay or other employment related matters, including, without limitation, all liabilities and obligations (whether fixed or contingent) with respect to any employment benefit program or plan as a result of the consummation of the transactions contemplated by this Agreement, as required by Austrian law or otherwise, and all liabilities of ARC under sales representative or similar agreements or arrangements pursuant to have assumedwhich any person or entity may be entitled to a commission on account of revenues booked or earned prior to the Closing Date; provided, however, that in no event is Buyer assuming any -------- ------- liabilities with respect to any employees terminated prior to the Closing Date or to have agreed to pay, satisfy, discharge any severance or perform, other termination obligations or any liability under any pension, profit sharing, 401(k) or similar employee benefit plan;
(vi) all liabilities and obligations of ARC to third parties arising out of any breach by ARC prior to the Closing Date of any representation, warranty, covenant or indemnification obligation of the Seller ARC under any Assigned Contract or Assigned Permitted or other than the Assumed Liabilities, including any of the following right assigned hereunder;
(vii) all liabilities or and obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any arising in respect of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax (viii) all liabilities of any for retrospective or similar insurance premium adjustments and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or sickness compensable under ARC's insurance plans arising prior to the Closing Date.; and
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating(ix) all other liabilities of ARC that are attributable to or arise from facts, preparingevents or conditions that occurred or came into existence prior to the Closing Date, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, including without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokersany intellectual property indemnification obligations.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything to the contrary contained in Section 2.3 or elsewhere in this -------------------- Agreement to the contraryAgreement, Buyer does not assume or agree to Seller shall maintain sole responsibility of, and solely shall retain, pay, satisfy, discharge or perform, and will not be deemed by virtue discharge, all liabilities of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, the following (collectively, the “Retained Liabilities”):
(a) The following Liabilities for Taxes: (i) any liabilities and all Taxes for taxes on any Pre-Closing Tax Period relating to the Acquired Assets; (ii) any and all Taxes relating to the Excluded Assets; (iii) the Pre-Closing Date Share of any and all Taxes relating to the Acquired Assets with respect to any Straddle Period; (iv) any and all Transfer Taxes, (v) any employment Taxes paid or measured to be paid by income, liabilities Seller for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A.any reason whatsoever, and liabilities (v) any deferred Taxes of any nature (including under the CARES Act or any analogous Law);
(b) any Liability under any Contract that is not an Assumed Contract plus any Liability under an Assumed Contract that is not assumed by Buyer, including any Liability arising out of or relating to Seller’s credit facilities, any security interest related thereto, or any warranty claim;
(c) any Liability under any Employee Plans, International Employee Plans, or any other employee benefit plans or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, employee stock option or other equity compensation or profit-sharing plans, healthcare plans or benefits, incentive compensation, nonqualified deferred compensation, or any other employee plans or benefits of any kind for income taxes arising as a result Seller’s employees or former employees or both, including any Liability with respect to the payment of bonuses for any reason;
(d) any Liability under any employment, severance, change of control, retention or termination agreement with any employee of Seller or any of its Affiliates;
(e) any Liability of Seller to any Member or Affiliate of Seller, other than Liabilities incurred in the ordinary course of business;
(f) any Liability to indemnify, reimburse or advance amounts to any officer, director, employee, or agent of Seller, other than Liabilities incurred in the ordinary course of business;
(g) any Liability to distribute to or otherwise apply to any of the transfer Members all or any part of the Station Assets consideration received hereunder;
(h) any Liability arising out of any Proceeding pending as of the Closing;
(i) any Liability arising out of any Proceeding commenced after the Closing and arising out of or otherwise relating to any occurrence or event happening prior to the Closing;
(j) any Liability arising out of or resulting from Seller’s compliance or noncompliance with any Law or Order of any Governmental Authority;
(k) any Liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated hereby, including any Liability of Seller for expenses incurred by virtue Seller or its Affiliates in connection with this Agreement and any Liability of Seller for any bonuses, commissions, or incentive payments paid or payable to any Person by reason of the consummation of the transactions contemplated hereby.; and
2.2.3 All liabilities or obligations (l) any Liability of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of based upon Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to ’s acts or omissions on or prior to occurring after the Closing DateClosing.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained Except for the liabilities of Seller specifically assumed in this -------------------- Agreement accordance with Section 1.3, Seller and its Affiliates are retaining any and all other liabilities and obligations of Seller and its Affiliates (the “Retained Liabilities”). The Retained Liabilities shall include all liabilities and obligations of Seller or any of its Affiliates including the following:
(a) for any Taxes that are (i) Taxes of Seller, (ii) Taxes related to the contraryAssets that were incurred in or are attributable to any taxable period (or portion thereof) ending on or before the Closing Date, Buyer does (iii) Taxes of another person for which Seller is liable, including, but not assume limited to Taxes for which Seller is liable by reason of Treasury Regulations Section 1.1502-6 (or agree to payany comparable or similar provision of federal, satisfystate, discharge local or performforeign law), being a transferee or successor, any contractual obligation or otherwise, and will not be deemed by virtue of the execution and delivery of this Agreement (iv) for income, transfer, sales, use or any document delivered at the execution of this Agreement, or other Taxes (as a result of defined below) arising in connection with the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, Agreement (including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes Taxes arising as a result of the transfer by Seller to Purchaser of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed Assets), except for any Taxes for which Purchaser is responsible pursuant to any of Seller or its Affiliates (as hereinafter defined)Section 9.5;
2.2.4 All liabilities (b) for all accounts and notes payable outstanding as of or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of prior to the terms or conditions of any provision of any Real Estate Lease or ContractClosing;
2.2.5 All liabilities (c) to employees, consultants and obligations independent contractors of Seller or any predecessor or Affiliate of Seller resulting fromits Affiliates, caused by or arising out ofincluding with respect to accrued and unpaid salaries, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment fees, bonuses or commissions, accrued and unused personal, sick or vacation days, employee health and welfare and other benefit plans and change of control, retention, severance or similar benefits, vacation in each case with respect to the period before the Employment Date (or, for benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, due as a result of service with Seller or any other employee benefitsof its Affiliates), withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, together with all liabilities and obligations arising from under the agreements described on Schedule 1.4(c);
(d) for repair, replacement or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, return of products manufactured or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on sold at or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death Closing; or
(e) arising out of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Dateany Retained Asset.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained Except for the Assumed Liabilities as provided in this -------------------- Agreement Section 1.3, Buyer shall not assume and shall not be responsible for, any Liabilities of Seller (or any Affiliate or predecessor thereof), all of which Liabilities shall be and remain the sole responsibility of Seller (or its Affiliate) (the “Retained Liabilities”), including all of the following Liabilities:
(a) any trade payables and other current liabilities and any Liabilities under any Purchased Contract for any period at or prior to the contraryClosing (regardless of any contrary provisions in any instrument of assumption or conveyance), Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or including for such purposes any document delivered at the execution of this Agreement, or Liabilities that arise as a result of the consummation of the transactions contemplated by this Agreementhereunder, including bonus payments for a change of control;
(b) any Liability, whether incurred or arising prior to, on or after the Closing Date, in connection with any actual or alleged breach, default or other failure to perform under any Purchased Contract or violation of Law occurring or alleged to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on occurred at or prior to the Closing Date includingClosing;
(c) all Liabilities in respect of Actions of or involving third parties against Seller arising out of incidents or events occurring at or prior to the Closing, without limitationincluding all workers compensation, any general liability and other insurance claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions an incident date on or prior to the Closing Date.;
2.2.10 Any fees (d) any Liability for any Indebtedness;
(e) any labor or employment related Liabilities (including accrued vacation pay, and expenses incurred by Seller severance and other payments payable to Employees in connection with negotiatingtermination of such employment and all bonuses or other payments payable to such Employees as a result of the transactions contemplated hereunder), preparingAction, closingjudgments, damages, costs, expenses (including any Action for severance pay, accrued vacation pay or wrongful discharge), grievances, unfair labor practices and carrying out this Agreement violations of any applicable Law or Order by reason of any act, omission or matter occurring at or prior to the Closing relating to any Employees or their respective Representatives;
(f) any Liability with respect to Employees that do not become Transferred Employees at the Closing in accordance with Section 6.7;
(g) any Liability with respect to self-insured retention, retrospective premiums and/or deductibles, if applicable, for claims arising from or relating to the period at or prior to the Closing;
(h) all Taxes now or hereafter owed by Seller, or attributable to the Business or the ownership, operation or use of the Purchased Assets relating to any period up to and including the Closing Date, including liabilities and obligations for Transfer Taxes resulting from the transactions contemplated by this Agreement;
(i) any Liability imposed upon or incurred by Buyer or its Affiliates by operation of any applicable Law or Order which Liability, includingif not for the operation of such Law or Order, without limitation, would have been a Retained Liability;
(j) any Liabilities of Seller under this Agreement or any Ancillary Document to which Seller is a party or any other agreement between Seller and Buyer;
(k) any Liability to the fees and expenses of Seller's attorneys, accountants, consultants and brokersextent related to an Excluded Asset (including Excluded Contracts); and
(l) any Liability relating to or arising from the Business for periods at or prior to the Closing.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, (a) Buyer does shall not assume any liabilities, commitments or agree to pay, satisfy, discharge obligations (contingent or perform, absolute and will whether or not be deemed by virtue determinable as of the execution and delivery Closing) of this Agreement Seller or any document delivered at the execution of this AgreementIES Properties, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than except for the Assumed Liabilities as specifically and expressly provided for in Section 2.3, whether such liabilities or obligations relate to payment, performance or otherwise. All liabilities, commitments or obligations not expressly transferred to Buyer hereunder as Assumed Liabilities are being retained by Seller or IES Properties, as the case may be (the “Retained Liabilities”), which shall remain liable therefore unconditionally. Seller and IES Properties hereby irrevocably and unconditionally waive and release Buyer from all Retained Liabilities, including any such liabilities created by statute or common law.
(b) Without limitation to the foregoing, all of the following liabilities shall be considered Retained Liabilities and not Assumed Liabilities (except as specified below) for the purposes of this Agreement:
(i) Any product liability or obligations similar claim for injury to person or property, regardless of the when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities IES Properties, or alleged to have been made by Seller or IES Properties, or that is imposed or asserted to be imposed by operation of law, in connection with any service performed or product manufactured, sold or leased by or on behalf of Seller or IES Properties, including without limitation any predecessor or Affiliate of Seller which relate claim relating to any product delivered in connection with the performance of the Excluded Assetssuch service and any claim seeking recovery for consequential damages, lost revenue or income; provided, however, that warranty claims with respect to e-houses are addressed in Section 2.4(b)(viii);
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreignii) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any Any Debt of Seller or its IES Properties, their respective Affiliates (as hereinafter defined)or the Business other than Debt under Financing Leases included in the Contracts;
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract(iii) Any intercompany account and trade payables;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 (iv) Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating Tax payable (A) with respect to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, Business or expenses relating to the Acquired Assets for any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations period ending on or prior to the Closing Date including, without limitation, any claims against by Seller or IES Properties or any liabilities for injury member of any Affiliated Group of which Seller or IES Properties is a member or (B) with respect to any business, assets, properties, or death operations of persons Seller or damage to IES Properties or destruction any Affiliate of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payableSeller or IES Properties, other indebtedness, obligations or accrued liabilities of Seller.than the Business and the Acquired Assets for any taxable period;
2.2.9 (v) Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites under or in connection with the Excluded Assets other than as expressly set forth in Section 5.6 in respect of certain commissions to be paid by Buyer to Seller;
(vi) Any liability or obligation with respect to compensation or employee benefits or any employment related matter of any nature owed to any employees, agents or independent contractors of Seller or IES Properties, whether or not employed by Buyer after the Closing, that either (A) arises out of or relates to the employment or service provider relationship between Seller or IES Properties and any such individuals, or (B) arises out of or relates to events or conditions occurring on or before the Closing Date;
(vii) Any liability or obligation of Seller or IES Properties arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby and fees and expenses of counsel, accountants, brokers, finders and other experts;
(viii) Any liability or obligation of Seller or IES Properties arising from warranties, guaranties and/or indemnities with respect to products manufactured and delivered or related in transit to acts the customer or omissions services performed by the Business prior to the Closing Date; and
(ix) Any liability or obligation of Seller or IES Properties arising out of this Agreement or the other Transaction Agreements; and
(x) Any other liability of Seller or IES Properties or their respective Affiliates whatsoever including any liability arising out of or relating to the ownership or operation of the Acquired Assets and the Business on or prior to the Closing Date (including any predecessor operations), including any claims, obligations or litigation arising out of or relating to events or conditions occurring on or before the Closing Date, except for the Assumed Liabilities as specifically and expressly set forth herein.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integrated Electrical Services Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution other provision of this Agreement, except to the extent expressly assumed by Buyer pursuant to Section 1.3, Buyer shall not assume or otherwise be responsible for or be bound by, and Sellers shall remain responsible for, any liabilities or obligations of the respective Sellers of any kind or nature, known or unknown, actual or contingent, matured or unmatured, liquidated or unliquidated, or otherwise, arising out of occurrences on or prior to the Closing Date (the "Retained Liabilities"), which include, without limitation:
(a) Any obligation or liability of any Seller under this Agreement;
(b) Any liability or obligation of any Seller with respect to (i) Loan Documents (as defined in Section 3.2.3) and indebtedness for borrowed money or (ii) any taxes (except as provided in Section 9.2);
(c) Any liability or obligation of BAPCO under the Retained Contracts;
(d) Any fees payable by BAPCO to Xxxxxxx & Associates, L.P. as a result of the consummation of the transactions contemplated by this Agreement, ; Asset Purchase Agreement
(e) The "FSI Advance" as determined for purposes of BAPCO's regularly prepared financials;
(f) Any liability of any Seller to have assumed, or to have agreed to pay, satisfy, discharge in respect of any employees or perform, former employees of any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising except as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter definedspecifically provided in Section 6.1);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages(i) any liability under any BAPCO Benefit Plan (as defined in Section 3.2.7) at any time maintained, supplemental unemployment benefitscontributed to or required to be contributed to, vacation benefitsby or with respect to Sellers, severance benefitsincluding any liability with respect to the termination or partial termination of any BAPCO Benefit Plan, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilitiesor (ii) any claim of unfair labor practice, or any other employee benefits, withholding tax liabilities, workers' compensationclaim under wage or hour laws, or any state unemployment compensation benefits or premiums, hospitalization worker's compensation law or medical claims, occupational disease regulation or disability claims, under any federal or other claims attributable state employment discrimination law or regulation; and
(g) Any liabilities not incurred in whole or in part to employment or termination by Seller or arising out the ordinary and usual course of any labor matter involving Seller business and consistent with past practice since the Balance Sheet Date (as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided defined in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed 3.2.10) and not approved by Buyer pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing DateSection 4.3 hereof.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aquis Communications Group Inc)
Retained Liabilities. Notwithstanding anything contained Section 2.03 or any provision in this -------------------- Agreement or any other writing to the contrary, Buyer does is assuming only the Assumed Liabilities and is not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or assuming any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any other liability or obligation of the Seller other than the Assumed Liabilities, including Sellers or any of the following liabilities their respective Affiliates of whatever nature, whether presently in existence or obligations of the Seller (the "Retained Liabilities"):
2.2.1 arising hereafter. All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to such other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate Sellers and their respective Affiliates, as well as all Liabilities of Seller resulting fromSuperVent and Industrias that are of the kind and nature described in this Section 2.04, caused (other than clause (iii) thereof), shall be retained by or arising out of, any violation and remain obligations and liabilities of law;
2.2.6 Any claims, liabilities, Sellers and their respective Affiliates (all such liabilities and obligations of Seller not being assumed being herein referred to as an employerthe “Retained Liabilities”). Notwithstanding any provision in this Agreement, including, including without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilitieslimitation Section 2.03, or any other employee benefitswriting to the contrary, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or Retained Liabilities include:
(i) All Liabilities relating to the Employee Benefit Plans.Retained Assets;
2.2.7 Any claims, liabilities, losses, damages, or expenses (ii) All Liabilities relating to any litigation, proceeding, or investigation fees and expenses of any nature arising out Seller or any Affiliate of Seller incurred in connection with this Agreement, including any fees or expenses of Deutsche Banc Xxxx Xxxxx and Credit Suisse First Boston;
(iii) To the extent not included as a Liability or otherwise provided for in the calculation of Final Net Worth, all Liabilities of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities Transferred Business for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant Taxes attributable to any environmental protection, health, period (or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions portion thereof) ending on or prior to the Closing Date., including all Taxes arising out of the Transferred Business or any of the Acquired Assets, including any ad valorem (subject to Section 7.05(c)), real or personal or intangible property, sales, personal, social security, goods and services (subject to Section 7.05(c)) or other Taxes which are not due or assessed until after Closing but which are attributable to any period (or portion thereof) ending on or prior to the Closing Date;
2.2.10 Any fees (iv) To the extent not included as a Liability or otherwise provided for in the calculation of Final Net Worth, all Liabilities with respect to the funding of any checks, wire transfers or other transfer orders which are outstanding as of the close of business on the day prior to the Closing Date in accordance with the provisions of Section 7.11;
(v) All Liabilities relating to workers compensation claims with a date of occurrence prior to the date of Closing in the State of Ohio;
(vi) All Liabilities relating to general liability (including product liability), automobile and expenses incurred workers compensation claims with a date of occurrence after April 1, 1989 and prior to October 1, 1998;
(vii) Subject to the provisions of Section 7.12, all Liabilities relating to general liability (including product liability), automobile and workers compensation claims with a date of occurrence (x) on or before April 1, 1989 or (y) on or after October 1, 1998, in each case to the extent, and only to the extent, such claims are covered, and payment with respect thereto is made by Seller the applicable insurer, under a Business Insurance Policy or any successor policy or program;
(viii) All Liabilities relating to the manufacture, distribution or sale of any ACP by or on behalf of the Business, any Company or any Affiliate of any Company or any predecessor entity of the foregoing, including any claims for asbestos-related injuries or claims relating in any way to the design, use, manufacture, sale or specification of asbestos or any ACP that are dismissed (whether such dismissal is on summary judgment, voluntary or otherwise);
(ix) All Liabilities arising in connection with negotiating(x) the litigation matter currently pending in Olsted County, preparingMinnesota and filed under the name French v. American Standard, closingMetalbestos Products et al, (y) the litigation matter currently pending in Oswego County, New York and carrying out this Agreement filed under the name Puglia x. Xxxxxxx, et al and (z) the transactions contemplated by this Agreementlitigation matter currently pending in Hennepin County, including, without limitation, Minnesota and filed under the fees name Xxxxxx and expenses of Seller's attorneys, accountants, consultants and brokers.Xxxxx Xxxx v.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Us Industries Inc /De)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Subject to the contrarySection 2.5, Buyer Newco 1 does not assume or agree to pay, honor, satisfy, discharge or perform, and will shall not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, Ancillary Document or as a result of the consummation of the transactions contemplated by this Agreementhereby or thereby, to have assumed, or to have agreed to pay, honor, satisfy, discharge or perform, any liability or obligation of the Seller any Transferor (other than the Assumed Liabilities), whether primary or secondary, direct or indirect, known or unknown, fixed, accrued or contingent, existing prior to the Effective Time (the “Retained Liabilities”), including the following:
(i) any liability of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated Transferor not specifically assumed pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter definedSection 1.3(a);
2.2.4 All (ii) any liability arising prior to the Effective Time out of any breach by any Transferor of any provisions of any Assumed Contract, including liabilities or obligations arising out of any Transferor’s failure to perform any Assumed Contract in accordance with its terms prior to the Effective Time;
(iii) any liability arising out of any breach by Seller or any predecessor or Affiliate of Seller Transferor of any of the terms or conditions provisions of any provision of any Real Estate Lease or Contract;
2.2.5 All Contract (other than an Assumed Contract and other than as described in Section 1.3(b)(ii)), including liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller Transferor’s failure to perform any Contract (other than an Assumed Contract and other than as an employer, and described in Section 1.3(b)(ii)) in accordance with its terms;
(iv) any claims, liabilities and obligations liability of any Transferor under any Employee Benefit Plan or Benefit Arrangement arising from or relating the operation of such Transferor’s businesses;
(v) any liability for any Taxes payable with respect to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller Contributed Assets or the Stations, including, without limitation, Operations for any liability period or obligation for cleaning up waste disposal sites from or related to acts or omissions portion thereof ending on or prior to the Closing Date.;
2.2.10 Any fees and expenses incurred by Seller (vi) any liability under or in connection with negotiatingany Excluded Assets;
(vii) any liability with respect to (A) any employees or any collective bargaining representatives of any employees, preparingagents or independent contractors, closingin each case incurred while such person was employed by or affiliated with any Transferor or any of its respective affiliates, whether or not such employees, collective bargaining representatives, agents or independent contractors are employed by or are affiliated with Newco 1 after the Effective Time, (B) any Laws relating to plant closings, mass layoffs or employment termination occurring at or prior to the Effective Time, (C) any liabilities arising under or with respect to any collective bargaining agreement or Employee Plans to which any Transferor or any of its respective affiliates is or was a party prior to the Effective Time, (D) any liabilities arising at or prior to the Effective Time for wages, salaries, severance (and notice thereof), termination pay, vacation, individual or group life or health insurance, property or personal injury claims or termination claims, and carrying (E) any liability arising on or prior to the Effective Time with respect to any employees of any Transferor, applicants for employment with such Transferor or collective bargaining agents arising from any unfair labor practice charges, charges of employment discrimination, other federal and state administrative charges of any kind, workers’ compensation claims, arbitration awards, claims under the WARN Act, claims for severance pay or other claims or causes of action of any kind;
(viii) any liability of any Transferor arising out of or incurred in connection with the negotiation, preparation and execution of this Agreement and the Ancillary Documents and the transactions contemplated by this Agreement, including, without limitation, the hereby and thereby and fees and expenses of Seller's attorneysany and all counsel, accountantsaccountants and other experts or advisers;
(ix) any intercompany liability between any Transferor and any affiliate thereof;
(x) any liabilities retained by any Transferor under Section 6.2;
(xi) any accounts payable or other payables due and owing by any Transferor;
(xii) any liability resulting from any Action, consultants and brokerswhether or not pending or threatened prior to the Effective Time, arising out of or relating to any other Retained Liability specified in this Section 1.3(b);
(xiii) any liability arising under any Contract that is not an Assumed Contract; and
(xiv) any fines or penalties imposed on any Transferor as a result of the Notice of Probable Violation disclosed on Transferor Disclosure Schedule 3.4, Item 1.a.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrarycontrary set forth above, the Buyer shall not assume, pay or discharge, and shall not be liable for any debt, obligation, responsibility or liability, whether fixed or contingent, whether known or unknown, of the Sellers (the "RETAINED LIABILITIES"), except to the extent specifically described in Section 2.3 hereof as an Assumed Liability. Without limiting the generality of the foregoing, the following are included among the Retained Liabilities which Buyer does not assume or agree become responsible for:
(a) any liabilities, obligations, responsibilities or commitments relating to pay, satisfy, discharge or perform, and will not be deemed by virtue arising out of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result operation of the consummation of e-Diagnostics Infrastructure prior to the transactions contemplated by this AgreementClosing Date, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, (i) any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or liability relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any ; (ii) contingent liabilities for injury to sick leave, vacation, holiday pay, severance pay, employee stock purchase rights or death of persons profit sharing rights; or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except (iii) Taxes other than sales taxes incurred in connection with the transaction contemplated hereby as provided in Section 3.32.6(a);
(b) any and all Taxes arising in respect of taxable periods ending on or before the Closing Date or, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant respect to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to taxable period that begins before but ends after the Closing Date., that portion of such taxable period before the Closing;
2.2.10 Any fees and expenses incurred by Seller (c) any liabilities that arise in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated employment by this Agreement, Seller of any employees (including, without limitation, the fees Key Employees); and
(d) any liability relating to government grants, subsidies or other assistance including without limitation any liability for reimbursement to a government for any research and expenses development grants, subsidies or assistance previously paid by the government relating to or arising out of Seller's attorneys, accountants, consultants and brokersthe e-Diagnostics Infrastructure prior to Closing.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does shall not assume or agree be obligated to pay, satisfy, discharge perform or performabide by, and will Seller shall retain exclusive responsibility for, any liabilities, debts, obligations, undertakings or commitments of the Seller (the “Retained Liabilities”), other than the Assumed Liabilities. Except for Assumed Balance Sheet Liabilities identified and set forth on Schedule 2.2(A)(1) (as amended by the Supplemental Schedule), the Retained Liabilities shall include, but not be deemed limited to, the following:
(1) Any sales, use, income, gross receipts, excise, franchise, employment, withholding or other imposition, duty or tax (each, a “Tax”) imposed by virtue or payable to any governmental body, federal, state or local, on or with respect to any period prior to the Effective Date or in respect to the sale and transfer of the execution and delivery of this Agreement Purchased Assets or the Assumed Liabilities;
(2) Any liability or obligation accruing prior to the Effective Date in respect to (a) any employee benefit plan or any document delivered at other employee benefit arrangement or commitment which is or has been maintained or contributed to by Seller, (b) any portion of any bonuses earned or accrued upon the execution basis of any events occurring prior to the Effective Date, (c) any accrued vacation benefits, or (d) any obligation to reimburse any employee for expenses incurred prior to the Effective Date;
(3) Any liability or obligation which, absent this provision, comprises a part of the Assumed Liabilities but which is covered by any insurance policy maintained by Seller or any of Seller’s affiliates (but, then, only to the extent of such insurance coverage);
(4) Any (a) inter-company charges or amounts due Parent or any affiliate of Seller or Parent, (b) claims relating to inter-franchise payment obligations which are based on the non-payment of amounts owing any other franchisee of the Franchisor, (c) amounts due for borrowed money, (d) obligations arising under any agreement, instrument or other contractual undertaking or commitment that is not an Assigned Contract or which is not an Assumed Liability, (e) obligations to refund prepayments by customers which Seller received without providing any training prior to the Effective Date or which prepayments represent duplicate payments, or (f) inter-franchise obligations relating to (i) payment for training programs sold to Xxxxxx Xxxxxx Worldwide or (ii) payment for training provided by franchisees of the Franchisor other than the Buyer or its affiliates upon redemption of national training coupons sold by Seller prior to the Effective Date in circumstances where same are redeemed more than one (1) year after the issuance of such coupons.
(5) [****************************************************];
(6) Any (a) liability or obligation to indemnify any director, officer, employee or agent of Seller, except with regard to indemnification obligations owed to Seller or Parent from Buyer and/or Owners arising under this Agreement, (b) liability arising out of or as in connection with any violation of a result of the consummation of the transactions contemplated by this Agreementstatute or governmental rule, to have assumedregulation, directive or to have agreed to payother requirement, satisfy, discharge or perform, and any liability or obligation of the Seller other than the Assumed Liabilitiesa conditional, including any of the following liabilities contingent or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilitiessimilar nature, or any other employee benefits, withholding tax liabilities, workers' compensation, (c) liability or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising obligation which arises from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations is based on or prior to the Closing Date including, without limitation, any claims against or any liabilities a claim for injury to or death of persons persons, or damage to or destruction of property, regardless of when asserted, but which arises from facts or circumstances which occurred prior to the Effective Date;
(7) Any liability or obligation relating to the Cisco Equipment Lease or a Minolta copy machine leased by Seller for use in the Leased Premises;
(8) Any liability or obligation relating to the premises previously occupied by Seller in Tucker, Georgia (including, but not limited to, repairs, maintenance or deferred maintenance, common area maintenance or other charges for the use of any workers' compensation claimscommon areas, rental payments, taxes, insurance, or other charges) or relating to the move of Seller’s assets and Business from the premises in Tucker, Georgia to either of the Leased Facilities;
(9) The obligations of Seller, Parent or their affiliate(s) on any warranty claims.
2.2.8 Except as provided guaranty of the Facilities Leases (but subject to the provisions set forth in Section 3.34.1) or for the making of or payment for any tenant improvements or similar charges relating to the Perimeter Center Lease; and
(10) Any debts, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, healthincurred by Seller, or safety laws actions, claims or regulations lawsuits asserted against either Buyer or resulting from Seller which relate to the generation, storage, treatment, transportation, handling, disposal, release operation of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or Business prior to the Closing Effective Date, except for matters which arise from or relate to (y) the Assumed Liabilities, and/or (z) the Training Obligations.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (New Horizons Worldwide Inc)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to Except for the contraryAssumed Liabilities, Buyer does Purchasers shall not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreementhereby, to and shall have assumed, or to have agreed to pay, satisfy, discharge or performno liability for, any liability or obligation Liabilities of the Seller other than the Assumed LiabilitiesSeller, including any of but not limited to Seller's Liabilities under this Agreement and the other Transfer Agreements and the following liabilities or obligations of the Seller (collectively the "Retained Liabilities"):
2.2.1 All obligations or liabilities (i) any Seller Environmental Claims;
(ii) any Liabilities of Seller or in respect of any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other (iii) any Liabilities of Seller for Taxes imposed on Seller (other than taxes expressly allocated pursuant Transfer Taxes) or any of its Affiliates;
(iv) any Liabilities of Seller under Seller's Bond Documents arising and accruing based on events occurring prior to the Closing;
(v) any Liabilities arising out of or in any way relating to Seller's employment of, termination of employment of, and provision of benefits to, and compensation of Employees employed or independent contractors engaged by Seller, including, but not limited to, claims for any personal injury, discrimination, mass layoff or plant closing, harassment, wrongful discharge or other provisions wrongful employment practice, unfair labor practice, claims for benefits (including claims arising under ERISA or workers' compensation laws), other violation of this Agreementor obligations under any employment Law or similar claims or causes of action, tax liabilities known or unknown, absolute or contingent, asserted or unasserted, of any and all kinds such Person arising out of events occurring or otherwise attributable to the period on or before the Closing;
(federalvi) any Liabilities of Seller relating to any Plan, state, local, and foreignor to any "employee pension plan" (as defined in Section 3(2) of ERISA) of Seller, whether or not terminated, established, maintained or contributed to by Seller includingor a Common Control Entity at any time, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to which any of Seller or its Affiliates a Common Control Entity are or have been obligated to contribute to at any time ("ERISA Affiliate Plan"); including any liability (A) to the Pension Benefit Guaranty Corporation under Title IV of ERISA; (B) relating to a multiemployer plan; (C) with respect to non-compliance with COBRA or The Health Insurance Portability and Accountability Act of 1996, as hereinafter definedamended ("HIPAA"); (D) with respect to noncompliance with any other applicable provision of the Code, ERISA or any other applicable laws; or (E) with respect to any suit, proceeding or claim which is brought against Purchaser with respect to any such Plan or ERISA Affiliate Plan, against any such Plan or ERISA Affiliate Plan, or against any fiduciary or former fiduciary of any such Plan or ERISA Affiliate Plan;
2.2.4 All (vii) any and all asserted or unasserted liabilities or obligations arising out of any breach by Seller to third parties (including Employees) for personal injury or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilitiestort, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out similar causes of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating action to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature extent arising out of the operations ownership or operation of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or Assets prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller (viii) other than in connection with negotiatingEnvironmental Claims any civil or criminal fines, preparingpenalties or costs imposed by a Governmental Authority resulting from (i) an investigation, closingproceeding, request for information or inspection relating to the Facility or any activities of Seller before or by a Governmental Authority commenced or pending prior to the Closing Date, but only regarding events, acts or omissions which occurred prior to the Closing Date, (ii) illegal acts or omissions, willful misconduct or negligence of Seller prior to the Closing Date or (iii) violations of Laws arising from the operation of the Facility prior to the Closing Date;
(ix) any payment obligations of Seller for goods delivered or services rendered prior to the Closing Date;
(x) liability for toxic torts arising as a result of or in connection with loss of life or injury to Persons (whether or not such loss or injury arose or was made manifest on or after the Closing Date) caused (or allegedly caused) by the presence or Release of Hazardous Materials (at any concentration and carrying whether or not in compliance with applicable Environmental Law) originating from or migrating from the Parcel during Seller's use and/or occupancy of the Parcel;
(xi) any obligations for wages, overtime, vacation pay, sick pay, holiday pay, employment Taxes, severance pay, retention bonuses or similar benefits accruing or arising prior to the Closing under any term or provision of any contract, plan, instrument or agreement relating to any of the Employees;
(xii) any liability of Seller arising out this Agreement and of its use and/or occupancy of the transactions contemplated Northern Parcels;
(xiii) any liability of Seller arising out of a breach by Seller or any of its Affiliates of any of their respective obligations under this Agreement, includingthe Service Agreement Settlement Agreement or the other Transfer Agreements; and
(xiv) any collective bargaining agreement, without limitationother labor contract, the fees and expenses of Seller's attorneys, accountants, consultants and brokersor any written understanding with any labor organization to which Seller is a party.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "“Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and ” means all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from the ownership, operation or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out use of the operations of the Stations on or Assets prior to the Closing Date includingEffective Time by Seller, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any whether such liabilities or obligations resulting from relate to payment, performance or otherwise, other than the failure to comply with Assumed Liabilities and shall include (a) personal or imposed pursuant bodily injury, illness, or death, intentional torts, gross negligence or willful misconduct to any environmental protection, health, employee or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation related to Seller the Properties or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or operations thereon prior to the Closing Date.
2.2.10 Any fees , (b) pending or threatened litigation related to the Properties (or a portion thereof) as of the Closing (whether disclosed or not), (c) offsite disposal of hazardous materials, (d) claims asserted by royalty owners, working interest owners and expenses others to whom Seller has remitted or owed Hydrocarbons or production proceeds with respect to the sale of Hydrocarbons produced from, attributable or allocated to Properties prior to the Closing Date, (e) joint interest billing and similar audits for operating and capital expenditures related to the Properties incurred prior to the Closing, (f) claims based on breach of contract by Seller in connection with negotiatingor its Affiliates prior to the Closing Date, preparing(g) fines or penalties imposed against Seller or Operator by any Governmental Authority for actions or omissions of Seller prior to the Closing Date, closing(h) any indebtedness of Seller for borrowed money, including any indebtedness secured by a lien on any of the Properties, (i) obligation for compensation of reimbursement to any of Seller’s current or former employees for work performed, including any obligations to the extent related to or arising under any employee benefit plan, express or implied contract, wages, bonuses, commissions or severance benefits, and carrying out this Agreement and (j) indemnification, contribution, or reimbursement with respect to matters included in the transactions contemplated Retained Obligations, whether arising under contract, by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.operation or law or otherwise
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does shall not assume or agree be obligated to pay, satisfy, discharge perform or performabide by, and will Seller shall retain exclusive responsibility for, any liabilities, debts, obligations, undertakings or commitments of the Seller (the “Retained Liabilities”), other than the Assumed Liabilities. Except for Assumed Balance Sheet Liabilities identified and set forth on Schedule 2.2(A)(1) (as amended by the Supplemental Schedule), the Retained Liabilities shall include, but not be deemed limited to, the following:
(1) Any sales, use, income, gross receipts, excise, franchise, employment, withholding or other imposition, duty or tax (each, a “Tax”) imposed by virtue or payable to any governmental body, federal, state or local, on or with respect to any period prior to the Effective Date or in respect to the sale and transfer of the execution and delivery of this Agreement Purchased Assets or the Assumed Liabilities;
(2) Any liability or obligation accruing prior to the Effective Date in respect to (a) any employee benefit plan or any document delivered at other employee benefit arrangement or commitment which is or has been maintained or contributed to by Seller, (b) any portion of any bonuses earned or accrued upon the execution basis of any events occurring prior to the Effective Date, (c) any accrued vacation benefits, or (d) any obligation to reimburse any employee for expenses incurred prior to the Effective Date;
(3) Any liability or obligation which, absent this provision, comprises a part of the Assumed Liabilities but which is covered by any insurance policy maintained by Seller or any of Seller’s affiliates (but, then, only to the extent of such insurance coverage);
(4) Any (a) inter-company charges or amounts due Parent or any affiliate of Seller or Parent, (b) claims relating to inter-franchise payment obligations which are based on the non-payment of amounts owing any other franchisee of the Franchisor, (c) amounts due for borrowed money, (d) obligations arising under any agreement, instrument or other contractual undertaking or commitment that is not an Assigned Contract or which is not an Assumed Liability, (e) obligations to refund prepayments by customers which Seller received without providing any training prior to the Effective Date or which prepayments represent duplicate payments, or (f) inter-franchise obligations relating to payment for training provided by franchisees of the Franchisor other than the Buyer or its affiliates upon redemption of national training coupons sold by Seller prior to the Effective Date in circumstances where same are redeemed more than one (1) year after the issuance of such coupons;
(5) [********************************************************************* ************************************************************************************************ ************************];
(6) Any (a) liability or obligation to indemnify any director, officer, employee or agent of Seller, except with regard to indemnification obligations owed to Seller or Parent from Buyer and/or Owners arising under this Agreement, (b) liability arising out of or as in connection with any violation of a result of the consummation of the transactions contemplated by this Agreementstatute or governmental rule, to have assumedregulation, directive or to have agreed to payother requirement, satisfy, discharge or perform, and any liability or obligation of the Seller other than the Assumed Liabilitiesa conditional, including any contingent or similar nature except for matters which arise from or relate to a breach of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates Owner Business Representations (as hereinafter defineddefined and further described in Section 6.3 below);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, (c) liability or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising obligation which arises from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations is based on or prior to the Closing Date including, without limitation, any claims against or any liabilities a claim for injury to or death of persons persons, or damage to or destruction of property, regardless of when asserted, but which arises from facts or circumstances which occurred prior to the Effective Date;
(7) The obligations of Seller, Parent or their affiliate(s) on any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided guaranty of the Facilities Lease (but subject to the provisions set forth in Section 3.34.1); and
(8) Any debts, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, healthincurred by Seller, or safety laws actions, claims or regulations lawsuits asserted against either Buyer or resulting from Seller which relate to the generation, storage, treatment, transportation, handling, disposal, release operation of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or Business prior to the Closing Effective Date, except for matters which arise from or relate to (x) a breach of the Owner Business Representations (as defined and further described in Section 6.3 below), (y) the Assumed Liabilities, and/or (z) the Training Obligations.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (New Horizons Worldwide Inc)
Retained Liabilities. Notwithstanding anything contained Except as set forth in this -------------------- Agreement Section 2.1, Purchaser is not assuming any of the liabilities or obligations of Seller. At the Closing, except for the Assumed Liabilities, Seller shall retain and remain liable for all of its liabilities and obligations, whether direct or indirect, matured or unmatured, known or unknown, absolute, accrued, contingent or otherwise, and whether now existing or hereafter arising (collectively, the “Retained Liabilities”). By way of example, and without limiting the generality of the foregoing, the Retained Liabilities include all of Seller’s indebtedness for borrowed money, payments under capitalized leases, obligations in respect of letters of credit and performance bonds; any Liability related to Benefit Plans or relating to payroll, severance, bonuses, vacation (other than Vacation and Sick Day Liability), workers’ compensation, unemployment benefits, any employment agreement, retention or termination agreement, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits or any other Benefit Plans or benefits of any kind, salaries and employment taxes in each case, for Seller’s employees or former employees arising or relating to an employment period prior to the contrary, Buyer Closing; any Liability arising out of or relating to products of Seller to the extent manufactured or sold prior to the Closing other than to the extent assumed by Purchaser under Section 2.1; any Liability for Taxes of Seller arising as a result of Seller’s operation of the Business or ownership of the Target Assets for any taxable period ending on or before the Closing Date and for the portion through the end of the Closing Date for any taxable period that includes (but does not assume end on) the Closing Date; any Liability arising out of or agree relating to pay, satisfy, discharge any employee grievance arising prior to the Closing whether or perform, and will not be deemed the affected employees are hired by virtue Purchaser; any Liability of the execution and delivery Seller to any shareholder or Affiliate of this Agreement Seller or such shareholder; any document delivered at the execution Liability relating to any payments that may become payable to any employee or former employee of this Agreement, or Seller as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller Contemplated Transactions (other than the Assumed Liabilities, including Vacation and Sick Day Liability and payments due pursuant an agreement between Purchaser and any employee of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or a Seller); any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations Liability arising out of or resulting from Seller’s compliance or noncompliance with any breach by Seller Law or any predecessor or Affiliate of Seller Order of any Governmental Authority at or prior to the Closing, including without limitation any Law or Order relating to employment practices and payments; and any Liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Seller, except for employee expense reimbursements incurred in the ordinary course of business that are reflected on the Sellers’ accounting records as of the terms or conditions Closing Date, except, in each case and only to the extent such Liability has been included in the final calculation of any provision Net Working Capital as of any Real Estate Lease or Contract;
2.2.5 All liabilities the Closing Date. Seller shall discharge and obligations perform in full when due all of Seller or any predecessor or Affiliate the Retained Liabilities. For avoidance of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilitiesdoubt, and obligations without limiting the generality of Seller as an employerthe foregoing, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN the Retained Liabilities include all obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations all Damages arising from or relating to the Employee Benefit Plans.
2.2.7 Any claimsoperation of the Business through the Closing Date, liabilitiesincluding without limitation, losses, damages, or expenses Taxes relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to Assets through the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from (notwithstanding the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to fact that such Taxes may become payable after the Closing Date), except to the extent expressly designated as an Assumed Liability.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including including, without limitation, any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All (a) all obligations or liabilities of Seller or any predecessor or Affiliate (as defined in Section 17.2) of Seller which in any way relate to or arise out of any of the Excluded Assets;
2.2.2 Other (b) other than taxes Taxes expressly allocated pursuant to other provisions of this Agreement, tax Tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes Taxes on or measured by income, liabilities for withheld federal and state income taxes Taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes Taxes arising as a result of the transfer of the Station Stations Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.;
2.2.3 All (c) except for the leases listed on Schedule 1.1.8, all liabilities or obligations of Seller owed to any Seller's Affiliates;
(d) all liabilities or obligations of Seller for borrowed money or its Affiliates (as hereinafter defined)for interest on such borrowed money;
2.2.4 All (e) all liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All (f) all liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any (g) any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefitsbenefits (except as otherwise provided in Section 9.1.6), severance benefits, retirement benefits, COBRA benefits, FAMLA FMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax Tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.'
Appears in 1 contract
Samples: Asset Purchase Agreement (Chancellor Media Corp of Los Angeles)
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer Purchaser does not assume or agree to pay, satisfy, discharge discharge, or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of Closing pursuant to this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge discharge, or perform, any liability liability, obligation, or obligation of the indebtedness set forth below (such liabilities and obligations retained by Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (RII being referred to herein as the "Retained Liabilities"):
2.2.1 All (a) all obligations or liabilities of Seller or RII or any predecessor or Affiliate of Seller thereof (including, without limitation, with respect to any environmental matters) which relate to any of the Excluded Assets or which relate to any business or operations (other than the Business or the Purchased Assets) conducted by Parent, Kronos Inc., Seller or any of their respective Affiliates;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax (b) all obligations or liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller RII or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or thereof relating to Income Taxes with respect to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating Business attributable to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations periods ending on or prior to the Closing Date including, without limitation, or to the pre-Closing portion of any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from taxable period that includes but does not end on the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the StationsClosing Date, including, without limitation, (i) any liability of Seller or obligation RII for cleaning up waste disposal sites from any Income Taxes arising because Seller or related RII is transferring the Purchased Assets or because Seller or RII has an excess loss account (within the meaning of Treas. Reg. SS1.1502-19) in the stock of any of the Subsidiaries, or because Seller or RII has deferred gain on any deferred intercompany transaction (within the meaning of Treas. Reg. SS1.1502-13) and (ii) all liabilities of Seller and RII for the unpaid Income Taxes of persons other than Seller and Subsidiaries under Treas. Reg. SS1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise;
(c) all obligations or liabilities of Seller or RII arising out of or relating to acts this Agreement or omissions on the transactions contemplated hereby and all obligations or prior to the Closing Date.
2.2.10 Any liabilities for any legal, accounting, investment banking, brokerage, or similar fees and or expenses incurred by Seller or RII in connection with negotiatingwith, preparingresulting from, closing, and carrying out this Agreement and or attributable to the transactions contemplated by this Agreement;
(d) all obligations or liabilities for any indebtedness for borrowed money incurred with respect to the Business prior to the Closing Date pursuant to any indenture, mortgage, loan, letter of credit, or other credit Contract under which the Seller or RII has borrowed or is entitled to borrow any money or issued any note, bond, indenture, or other evidence of indebtedness for borrowed money, or any guarantee or other contingent liability in respect of any indebtedness of any other Person, including, without limitationlimitation any obligations or liabilities of Seller or RII pursuant to the Amended and Restated Bank Credit Agreement dated as of January 30, 1997 among Seller, certain of the fees Subsidiaries, The Chase Manhattan Bank, N.A., and expenses the other lenders named therein; and
(e) except (x) as specifically provided in Sections 2.1(b), 2.1(c) and 9.1, or (y) to the extent of Seller's attorneysthe amount accrued on the Closing Statement prepared pursuant to Section 3.2(c), accountantsall obligations or liabilities (contingent or otherwise) of Seller arising from or relating to (i) the employment or termination of employment of any Employee before the Closing Date, consultants (ii) Employee Plans (including claims arising thereunder and brokersrelating to the period prior to the Closing Date) and (iii) post-retirement medical and/or life insurance benefits coverage of current or former non-bargaining unit Employees and their eligible dependents.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, The liabilities and will not obligations which shall be deemed retained by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller FNS (the "Retained Liabilities"):) shall consist only of the following:
2.2.1 All (a) all liabilities and obligations of each and every kind owed by FNS to or for the account of any one or more of Cross Country Motor Club, Inc., Cross County Motor Club of California, Inc., Cross Country Service Corp., Cross Country Home Assistance Services, Inc. and HAC, Inc. or their respective affiliates (collectively "Cross Country"), such liabilities and obligations referred to herein collectively as the "Intercompany Obligations"; provided, however, that payments made on or after the Closing by the Sellers or their affiliates to a third party on behalf of Acquisition Sub relating to any expense or cost incurred prior to May 31, 1997 shall be an Assumed Liability of New FNS.
(b) all liabilities of Seller FNS relating to indebtedness for borrowed money (other than operating leases), to the extent such liabilities are not reflected on the Last Balance Sheet;
(c) all liabilities of FNS or any predecessor the FNS Shareholders resulting from, constituting or Affiliate relating to a breach of Seller which relate to any of the Excluded Assetsrepresentations, warranties, covenants or agreements of FNS or the FNS Shareholders under this Agreement;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax (d) all liabilities of any and all kinds (FNS for federal, state, locallocal or foreign taxes of whatever nature, including transfer taxes and foreign) taxes incurred in respect of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state the income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) of FNS earned or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations realized on or prior to the Closing Date including, without limitation, (including any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, gain and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting income from the failure to comply sale of the Purchased Assets and other transactions contemplated herein); (e) any liability or obligation incurred by FNS in connection with the negotiation, execution or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release performance of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller this Agreement or the StationsAncillary Agreements, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any all legal, accounting, brokers', finders' and other professional fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.expenses;
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this The Buyer shall not at the Closing -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, pay or discharge, and will not be deemed by virtue the Company shall remain unconditionally liable for, all obligations, liabilities and commitments, fixed or contingent, known or unknown, of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller Company (other than the Assumed Liabilities), including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed related to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of i) any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerCompany's indebtedness, including, without limitation, the liabilities for wagescomprising the "Current Maturities of Debt" and "Debt, supplemental unemployment benefitsNet of Current Maturities" line items on the Balance Sheet of the Company dated March 31, vacation benefits1999 and attached hereto as Schedule 1.4(b) (the "Initial Asset/Liability --------------- Schedule"), severance benefits(ii) any litigation involving the Company, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, (iii) brokers or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out third parties acting on behalf of the operations Company in connection with the sale of the Stations Acquired Assets, (iv) any Employee Plan maintained by the Company on or prior to the Closing Date including, without limitation, and related to the Business; (v) any claims against Taxes which are or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, were due and any warranty claims.
2.2.8 Except as provided payable in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from connection with the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller Acquired Assets or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions Business on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller ; (vi) any claim arising from, relating to or made in connection with negotiatingany Environmental Law based on any event, preparing, closing, and carrying out this Agreement and action or inaction by the Company in connection with the Business or the Acquired Assets on or prior to the Closing Date; (vii) any Contract that is not an Assumed Contract; (viii) any payments to be made to employees or consultants of the Company related to the Business that are triggered by the transactions contemplated by this Agreementherein, including without limitation, golden parachute or golden handcuff payments; (ix) any liability related to the Company's real estate leases, including, without limitation, the fees current space utilized in connection with the Business; (x) the Employee Bonuses (as defined below); and expenses of Seller's attorneys, accountants, consultants and brokers(xi) any liability related to the Electronic Commerce Business.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained any provision in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of shall retain and be responsible only for the following liabilities or obligations of the Seller Liabilities (the "“Retained Liabilities"”):
2.2.1 All obligations or liabilities (a) all Liabilities of Seller or any predecessor or Affiliate of Seller which relate related to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant (b) all Liabilities arising out of or relating to other provisions of this Agreement, tax liabilities (i) the return of any and Product bearing Seller’s NDC Number (including the Inventories) shipped by Seller to a third party prior to the end of the Transition Period (“Shipped Products”) or (ii) rebates or chargebacks related to any Shipped Products;
(c) all kinds (federal, state, local, and foreign) Liabilities of Seller includingin respect of any Proceeding (whether class, without limitationindividual or otherwise in nature, in law or in equity) commenced or asserted prior to the Closing, whether related to the Purchased Assets or the Excluded Assets;
(d) all Liabilities arising out of or relating to any liabilities product liability, breach of warranty or similar claim for taxes on injury to any Person or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) property that resulted from the use or employer F.I.C.A., and liabilities for income taxes arising as a result misuse of the transfer Products or otherwise related to the Products, including the Inventories (including any Proceeding relating to any such Liabilities) shipped or sold by or on behalf of Seller before the end of the Station Assets Transition Period or otherwise by virtue of the consummation of the transactions contemplated hereby.bearing Seller's NDC Number;
2.2.3 All liabilities or obligations (e) all Liabilities of Seller owed to any its suppliers for materials and services relating to the manufacture of finished goods Inventory that were delivered or provided to Seller or its Affiliates (as hereinafter defined)prior to Closing;
2.2.4 All liabilities or obligations (f) the Pre-Closing Royalty;
(g) any Liability arising out of any breach by Seller Permitted Encumbrance of the type set forth in clauses (iii) or (iv) of the definition thereof;
(h) any predecessor Liability under Seller’s employee benefits or Affiliate compensation arrangements; and
(i) all Liabilities of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or Taxes relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, Purchased Assets or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except Products other than as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller9.7.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or performassume, and will Seller shall retain all liabilities, obligations, debts, and expenses of Seller other than the Assumed Liabilities (collectively, the “Retained Liabilities”) whether or not be deemed the Retained Liabilities are known or unknown, fixed or contingent, and whether or not the Retained Liabilities arose by virtue reason of events occurring prior to or after the Closing. Without limiting the foregoing, the Retained Liabilities shall include, without limitation, any Liabilities relating to:
(a) accounts payable and accrued liabilities related to the operation of the execution Business prior to Closing;
(b) any Liability of Seller arising out of or relating to any Employees prior to the Closing Date, and delivery any Liability of Seller related to any former employees, employment practices or policies, or employee benefits, including, without limitation, direct or indirect compensation, salary, wages, bonus, retirement, health, welfare, or other benefits, vacation or sick days, severance, ERISA matters (including COBRA rights), workers compensation claims, claims related to discharge, discrimination claims, or other employment or employee related claims;
(c) any Liability of Seller whether presently in existence or arising hereafter which is attributable to an Excluded Asset;
(d) any Environmental Liability of Seller (regardless of whether such Liability constitutes a breach of any representation, warranty, or covenant in this Agreement Agreement), whether presently in existence or any document delivered at arising after the execution date of this Agreement, which arises from acts, events, conditions, or circumstances existing or occurring on or before the Closing Date;
(e) any Debt;
(f) any Seller Taxes;
(g) any Liability of Seller of any nature whatsoever which are based on events occurring on or before the Closing Date, or which are based on products sold or services performed by the Business on or before the Closing Date, including but not limited to product liability, warranty or similar claims with respect to products sold by Seller or services rendered by Seller prior to the Closing, notwithstanding that the date on which the Liability arose is after the Closing Date; provided if such liability relates to products sold or services performed prior to the Closing Date then Seller shall have all rights benefiting Seller or Buyer against the manufacturer or distributor of such product, including any warranties as described in Section 2.01(l);
(h) any Liability of Seller with respect to litigation, suits, claims, demands, or governmental proceedings (i) to which Seller is a result party as at the Closing Date or (ii) to the extent that such Liability arises out of actions or events prior to the consummation Closing Date;
(i) any Liability for failure to comply with any applicable bulk sale, bulk transfer, successor liability and similar laws, or with any laws triggered by a bulk sale or transfer of property, of any jurisdiction in connection with the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, ; and
(j) any liability or obligation of the Seller other than the Assumed Liabilities, including any regardless of the following liabilities when made or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreementasserted, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured that are not specifically assumed by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated herebyBuyer hereunder.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nexeo Solutions Holdings, LLC)
Retained Liabilities. Notwithstanding anything contained Retained Liabilities" shall mean (i) -------------------- except for Liabilities identified on Schedule 3.32, all Liabilities of Melham, ------------- Inc., existing as of, or arising out of events, actions or circumstances occurring on or prior to, the Closing Date, other than obligations, claims and liabilities arising solely as a result of Melham, Inc.'s ownership of the capital stock of Xxxx and, except as provided in this -------------------- Agreement (vi) below, other than Taxes attributable to the contraryactivities of Xxxx and its Subsidiaries and for which Melham, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will Inc. would not be deemed by virtue liable but for Treas. Reg. (S) 1.1502-6 or analogous provisions of state or local law; (ii) except for Liabilities identified on Schedule 3.32, all Liabilities of the execution and delivery of this Agreement or any document delivered at the execution of this AgreementCompany existing as of, or arising out of ------------- events, actions or circumstances occurring on or prior to, the Closing Date, other than obligations, claims and liabilities arising solely as a result of the consummation Company's indirect ownership of the transactions contemplated by this Agreementcapital stock of Xxxx and, to have assumedexcept as provided in (vi) below, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than Taxes attributable to the Assumed Liabilitiesactivities of Xxxx and its Subsidiaries and for which the Company would not be liable but for Treas. Reg. (S) 1.1502-6 or analogous provisions of state or local law; (iii) all Liabilities of VPI and Greenwood, including any of Liability arising or related to the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Accounts Receivable Management and Security Agreement, tax liabilities dated as of February 5, 1999, between BNY Financial Corporation and VPI or the guaranty by the Company of any and all kinds such Liability; (federal, state, local, and foreigniv) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations Liability arising out of or related to the guaranty of SPA lease; (v) any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part amounts due with respect to employment or termination by Seller or arising out of the Debt Payment Obligations that are not included in the Pay-off Amount; (vi) any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation Liability of any nature member of the Xxxx Group for Taxes arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts the Recapitalization; and (vii) Liabilities for withholding Taxes for payments to or omissions for the benefit of any Person that is a foreign person for United States tax purposes made by the Company or any of its Subsidiaries on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement Except for the liabilities and obligations to the contrarybe assumed by Purchaser pursuant to Section 3.03, Buyer does Purchaser will not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, liable for any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms AG Companies, known or conditions of any provision of any Real Estate Lease unknown, contingent or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting fromabsolute, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, accrued or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer(the “Retained Liabilities”), and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, includingwhich Retained Liabilities include, without limitation, the fees following (provided, however, that the following items do not limit the scope or extent of the Assumed Liabilities):
(a) Liabilities, obligations or debts of any of the AG Companies, whether fixed, contingent or mixed and expenses whether based on events occurring before or after the Closing, including those based on tort, contract, statutory or other claims or involving fines or penalties payable to any governmental authority, that are not recorded, or exceed the amounts recorded, on the Closing Balance Sheet;
(b) Liabilities, obligations or debts, if any, of Seller's attorneysany of the AG Companies to General Electric Capital Corporation, accountantsincluding under the Credit Agreement dated as of October 6, consultants 2005 among Associated Grocers, Incorporated, as Borrower, the other credit parties signatory thereto, as credit parties, and brokers.General Electric Capital Corporation, as Lender, as amended;
(c) Liabilities or obligations with respect to leases, subleases, guarantees or other financial commitments of the AG Companies that are not Purchased Assets;
(d) Except as otherwise provided in this Agreement, liabilities, obligations or debts of any of the AG Companies for any federal, state, local or foreign tax, including federal income taxes, state income and excise taxes, state and local real and personal property taxes, customs duties, value added tax, and federal, state, local and foreign withholding and payroll taxes;
(e) Except for the Assumed Plans and except as provided in Section 7.03(c), (d) and (e), liabilities or obligations of any of the AG Companies or any of their ERISA Affiliates with respect to a Seller Benefit Plan or for salaries, bonuses, health and welfare benefits, workers compensation or for any other benefits or compensation (including accrued vacation), including those pursuant to employment agreements and industrial insurance obligations;
(f) Liabilities or obligations of any of the AG Companies or any of their ERISA Affiliates for employee severance payments or arrangements resulting from termination of the employees of any of the AG Companies or their ERISA Affiliates;
(g) Liabilities or obligations of any of the AG Companies relating to issuances of the stock or other ownership interests of whatever type in any of the AG Companies;
(h) Liabilities or obligations of any of the AG Companies incurred in connection with distributions to shareholders or members or in connection with any corporate or other dissolution;
(i) Liabilities or obligations of any of the AG Companies incurred with respect to any litigation, including the SUPERVALU Litigation and the Xxxxx and Xxxx Litigation;
(j) Any obligations or liabilities primarily related to the Retail Store or any other retail stores of any of the AG Companies; and
(k) Liabilities or obligations of any of the AG Companies for Washington and Seattle business and occupation tax relating to Western Family Foods, Inc.
Appears in 1 contract
Samples: Asset Purchase Agreement (Unified Western Grocers Inc)
Retained Liabilities. Notwithstanding anything contained any provision in this -------------------- Agreement to the contrary, Buyer does Purchaser is not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue assuming any of the execution and delivery following Liabilities of this Agreement or Seller (collectively, the “Retained Liabilities”):
2.4.1 any document delivered at Liability of Seller to the execution of this Agreement, or as a result of extent not relating to the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any Business;
2.4.2 product liability (strict liability or obligation of the Seller otherwise), product recalls or field corrective actions, including those associated with MDRs, fraudulent concealment or tort claims (other than the Assumed LiabilitiesWarranty Obligations) concerning Seller’s products sold or delivered to customers prior the Closing Date;
2.4.3 any Liability relating to an Excluded Asset;
2.4.4 any accounts payable or notes payable of Seller;
2.4.5 any financed or other debt that Seller owes to any Person;
2.4.6 any Liability that Seller has to any of its Affiliates or any other division of Seller;
2.4.7 any Action that is pending or threatened against Seller as of the Closing Date;
2.4.8 any obligation of Seller that it expressly undertakes pursuant to this agreement;
2.4.9 any Liability relating to the GE Employee Plans or other compensation or benefit plan of Seller or under which any past or present employee of Seller has participated or is currently participating, including or any violation of a Requirement of Law related thereto or arising thereunder, or any funding deficiency with respect to, or any breach of or default under the terms of such plans occurring prior to or existing on the Closing Date;
2.4.10 Taxes with respect to Seller or the Business with respect to any period prior to the Closing Date;
2.4.11 guarantees by Seller of any indebtedness or obligation of any other Person for borrowed money or otherwise;
2.4.12 except for any of the following liabilities to the extent relating to the Leased Premises, any civil or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations criminal penalties or liabilities of Seller other Liabilities or any predecessor payments in the nature thereof, or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreementdamages or clean-up costs, tax liabilities of under any and all kinds (Environmental Laws or any federal, state, locallocal or foreign law, rule, regulation or policy governing occupational health and foreign) safety matters, or founded upon a private right of Seller includingaction or third party claim in respect of Hazardous Substances or occupational health or safety matters, without limitationimposed upon, or sought to be imposed upon, Seller, or Purchaser on account of any liabilities for taxes on act or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any omission of Seller or its Affiliates (as hereinafter defined)Affiliates, or on account of any state of facts or conditions existing prior to the Closing Date;
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate 2.4.13 subject to Section 6.2.1, compensation and benefits owing to employees of Seller of any of (whether due or accruing prior to or after the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerClosing Date), including, without limitation, liabilities for wagessalary, supplemental unemployment bonus, commission, vacation pay, severance pay, deferred and accrued compensation, health care and pension benefits, vacation benefitsand other compensation payable under contract, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilitiesbenefit plan, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to otherwise;
2.4.14 the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out sale of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the StationsPurchased Assets hereunder, including, without limitation, any liability or obligation for cleaning up waste disposal sites from fees of Seller’s attorneys and other advisors;
2.4.15 Liabilities under or related to acts Retained Leases; and
2.4.16 pending, threatened or omissions on future Actions by or with respect to current or past employees of Seller based upon, or related to, the employment relationship between Seller and its employees, the termination of such employment relationship, or any actual or alleged act, action, occurrence, transaction, omission or communication that transpired or occurred at any time prior to the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses claims under any Requirement of Seller's attorneysLaw related to human rights, accountantsdiscrimination, consultants and brokerscivil rights, employee compensation, disabilities, fair labor or medical leave.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement The Retained Liabilities shall remain the sole responsibility of and shall be retained, paid, performed and discharged solely by Seller. The Retained Liabilities shall include the following:
(i) any liability or obligation with respect to the contrary, Buyer does not assume or agree Taxes for which Seller is liable pursuant to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, Section 7.6;
(ii) any liability or obligation of the Seller based upon or arising under this Agreement;
(iii) any liability or obligation with respect to any present, former or prospective employees of Seller arising out of or in connection with their employment or possible employment with Seller at any time, or any liability or obligation with respect to any present, former or prospective contract employee, independent sales representative or other than the Assumed Liabilitiesindependent contractor of Seller arising out of or in connection with their relationship or possible relationship with Seller at any time, including any of liability arising out of:
(A) any benefit plans or benefit arrangements, including but not limited to the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded AssetsBenefit Plans and Benefit Arrangements;
2.2.2 Other than taxes expressly allocated pursuant to (B) any collective bargaining agreements;
(C) any shut-down agreements;
(D) any charges, complaints and/or grievances concerning Seller's termination of its employees, contract employees, independent sales representatives or other provisions of this Agreement, tax liabilities independent contractors;
(E) any violations or alleged violations of any and all kinds (federal, state, localprovincial, and foreign) of Seller including, without limitation, any liabilities for taxes on local or measured foreign Laws by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined)Seller;
2.2.4 All liabilities (F) any tort or obligations arising out contract claims of any breach by Seller kind, or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities other claims relating to affirmative action compliance, compensation, health and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment welfare benefits, vacation pay, unemployment insurance benefits, deferred compensation, pension and retirement benefits, severance benefits, retirement disability benefits, COBRA other fringe benefits, FAMLA benefitsrights arising under a collective bargaining agreement, WARN obligations or rights or benefits under the Consolidated Omnibus Budget Reconciliation Act, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Occupational Safety Hazard Act, the Worker Adjustment Retraining and liabilitiesNotification Act, ERISA, the California Civil Rights Initiative or any other employee benefitsfederal, withholding tax liabilitiesstate, provincial, local or foreign employment Law;
(G) any claims asserted by Seller's present or former employees or independent contractors for workers' compensation, or unemployment compensation benefits or premiumscomparable benefits; or
(H) the termination or refusal to employ by Seller of any of its present, hospitalization former or medical claims, occupational disease or disability claimsprospective employees, or other claims attributable in whole the termination or in part refusal to employment or termination utilize by Seller or arising out of any labor matter involving Seller as an employerof its present, and former or prospective contract employees, independent sales representatives or other independent contractors;
(iv) any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtednessconditions, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities , actual, contingent or obligations resulting from the failure otherwise, relating to comply with or imposed Contaminants, and/or arising pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the StationsEnvironmental Laws, including, without limitationbut not limited to, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions On-Site Environmental Liabilities and Off-Site Environmental Liabilities, in each case in respect of the period on or prior to the Closing Date.;
2.2.10 Any fees and expenses incurred (v) any liability arising out of the violation of, or failure by Seller in connection to comply with, any Law;
(vi) any liability or obligation of Seller relating to the Retained Assets;
(vii) any liability or obligation of Seller arising out of any indebtedness (other than the obligations listed on Schedule 2.1) with negotiatingrespect to any period ending on or prior to the Closing Date;
(viii) any liability or obligation of Seller with respect to any claim, preparingaction, closingsuit, proceeding or arbitration by any Person, or arising out of any inspection, investigation or audit or any enforcement or other action by any Governmental Entity;
(ix) any liability or obligation of Seller under any instrument, agreement or contract that is not an Assumed Contract; and
(x) any audit, legal, financial adviser, broker or finder fees or commissions payable by Seller. Except as provided herein, all of the foregoing liabilities, obligations or claims are not being assumed by Buyer hereunder or otherwise, and carrying out this Agreement and are hereinafter collectively referred to as the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers"Retained Liabilities."
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does not assume or agree to pay, satisfy, discharge or perform, and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than Except for the Assumed Liabilities, including the Buyer shall not, by virtue of its acquisition of the Purchased Assets or otherwise, assume or become responsible for any Liabilities of any Seller or any Affiliate of any Seller, any Member or any of the following liabilities or obligations Businesses, of any kind and nature that are not expressly included within the Seller definition of Assumed Liabilities (collectively, the "Retained Liabilities"):), including:
2.2.1 All obligations (a) Liabilities for accounts payables, or liabilities trade indebtedness, indebtedness to banks and other financial institutions, or to stockholders, members or affiliates;
(b) Liabilities in respect of Seller or any predecessor or Affiliate of Seller which relate to employment with any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to Sellers for any wages, salary, vacation pay, sick leave pay or pay for time not worked, back pay, severance or termination pay or other provisions of this Agreementcompensation, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on Taxes or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) arising in connection with or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed related to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting fromEmployee Benefit Plan, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employerif any, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part pursuant to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations COBRA;
(c) Liabilities relating to Taxes;
(d) except to the extent arising from or relating to any actions or conditions which first occur or exist after the Employee Benefit Plans.
2.2.7 Any claimsClosing Date with respect to the Buyer's operation of the Branches, liabilities, losses, damages, or expenses all Liabilities of any Seller relating to any litigationcondition with respect to contamination of air, proceedingsoil, surface or investigation ground waters, and all other environmental media at any real property ever owned, leased or operated by any of Sellers including any of the Branches;
(e) Liabilities relating to personal injury or property damage or relating to goods and services sold prior to the Closing Date and alleged by third parties to be defective, including all tort claims and claims seeking special or consequential damages attributable to allegedly defective goods, materials or services supplied by any of Sellers;
(f) any Liabilities relating to any Seller's failure to comply with any Requirement of Law prior to the Closing;
(g) any Liabilities relating to any of the matters identified on either of Schedule 5.14 or Schedule 5.15(2) and
(h) any other Liabilities of any nature Seller or arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the StationsPurchased Assets including for any civil or criminal damages or penalties (including punitive and exemplary damages allowed by law and interest), includingimposed on or sought to be imposed on any Seller or the Buyer or any of the officers, without limitationdirectors, members or stockholders of the Buyer, on account of any tortious, fraudulent, criminal or other act of any Seller or any of their respective officers, directors, members or stockholders. Without limitation to the foregoing, the intent and objective of the Sellers, the Members and the Buyer is that, except for the Assumed Liabilities, the Buyer does not assume, and no transferee or successor liability of any kind and nature shall attach to the Buyer pertaining to, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions on or prior to of the Closing DateRetained Liabilities, if any, all of which Retained Liabilities shall be the sole responsibility of and paid by the Sellers.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokers.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrarySellers shall retain responsibility for performing when due, and Buyer does shall not assume or agree have any responsibility for, all liabilities of Sellers related to pay, satisfy, discharge or perform, the Business and will not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller Purchased Assets other than the Assumed Liabilities, including any (i) the ownership and operation of the following liabilities or obligations of Business and the Seller Purchased Assets prior to the Closing; (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of ii) the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities ; (iii) the termination of any and all kinds employees of Sellers who are not Transferred Employees; (federaliv) Transferred Employees who do not report for work with Buyer upon the Closing; (v) certain indebtedness of the Sellers set forth on Schedule 1.4; (vi) any refund, state, localrecoupment, and foreignany penalty obligations for services rendered and billed by the Business or its employees prior to Closing, regardless of when such obligations are discovered or due; and (vii) any liability relating to or arising out of Seller any employment action or practice in connection with Seller’s employment or termination of employment of any persons currently or formerly employed or seeking to be employed by the Sellers, including liabilities based upon breach of employment contract, employment discrimination, wrongful termination, wage and hour compliance (including, without limitation, any liabilities for taxes on employee classification, overtime and minimum wage obligations), independent contractor classification, health and safety requirements, immigration and/or worker authorization requirements, disability accommodation and leave laws, workers’ compensation, constructive termination, failure to give reasonable notice or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result pay in lieu of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefitsnotice, severance benefitsor termination pay or the Consolidated Omnibus Budget Reconciliation Act, retirement benefitsas amended, COBRA benefitsthe Employee Retirement Income Security Act of 1974, FAMLA benefitsas amended, WARN obligations and liabilitiesthe Worker Adjustment Retraining Notification Act of 1988, as amended, the Fair Labor Standards Act, as amended, or the National Labor Relations Act, as amended, or any other employee benefitsequivalent state, withholding tax liabilitiesmunicipal, workers' compensationcounty, or unemployment compensation benefits or premiumslocal, hospitalization or medical claims, occupational disease or disability claims, foreign or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating Applicable Law. Notwithstanding anything to the Employee Benefit Plans.
2.2.7 Any claims, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitationcontrary contained herein, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed amounts that come due pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from this Section 1.4(a)(vi) or related to acts or omissions the liabilities listed on or Schedule 2.12(b), if any, shall be offset as set forth in Section 7.6(e) subject to Sellers’ and Owner’s prior to written consent. 6
(a) For the Closing Date.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing, and carrying out this Agreement and the transactions contemplated by purposes of this Agreement, including, without limitation, the fees and expenses of Seller's attorneys, accountants, consultants and brokersliabilities described in Section 1.4(a) shall collectively be the “Retained Liabilities”.
Appears in 1 contract
Samples: Asset Purchase Agreement
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to the contrary, Buyer does (a) Comtrak shall not assume or agree to pay, satisfy, discharge or performpay any, and will not the Company shall continue to be deemed by virtue responsible for each, Liability of the execution and delivery of this Agreement Company whether or any document delivered at not relating to the execution of this AgreementCompany's Business, or as a result of the consummation of the transactions contemplated not expressly assumed by this AgreementComtrak in Section 2.6(a) (collectively, to have assumed, or to have agreed to pay, satisfy, discharge or perform, any liability or obligation of the Seller other than the Assumed Liabilities, including any of the following liabilities or obligations of the Seller (the "Company Retained Liabilities"):). Specifically, without limiting the foregoing, the Company Retained Liabilities shall include the following:
2.2.1 All obligations (i) any Indebtedness or liabilities bank over-draft of Seller the Company;
(ii) any legal or administrative action pending, including Environmental Claims, as of the Closing Date, notwithstanding the disclosure thereof in the Disclosure Schedule, or any predecessor subsequent claim, action, suit or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes on or measured by income, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Act) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations proceeding arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claims(A) such pending matters, liabilities, losses, damages, or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities for injury to or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting from the failure to comply with or imposed pursuant to any environmental protection, health, or safety laws or regulations or resulting from the generation, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, and liquid and gaseous matters by Seller and by (B) any other person in relation to Seller or the Stations, including, without limitation, any liability or obligation for cleaning up waste disposal sites from or related to acts or omissions event occurring on or prior to the Closing Date, or (C) resulting from the Company's conduct of the Company's Business;
(iii) any Liability to the extent arising out of or relating to the Company Retained Assets;
(iv) any Liability (whether direct or as a result of transferee liability, joint and several liability, or contractual liability) of the Company for Taxes (including all income Taxes incurred on, after, or before the Closing Date) that are unrelated to the Company Purchased Assets, the Company's Business, or the Transferred Employees (whether accrued or payable on, after, or before the Closing Date and whether or not reserved for on the Closing Balance Sheet) and any liability (whether direct or as a result of transferee liability, joint and several liability, or contractual liability) for Taxes (other than Assumed Taxes) for periods (or portions thereof) ending on the Closing Date that are related to the Company Purchased Assets, the Company's Business, or the Transferred Employees (whether accrued or payable on, after, or before the Closing Date and whether or not reserved for on the Closing Balance Sheet);
(v) any Liability arising from claims, proceedings or causes of action resulting from property damage (including cargo claims) or personal injuries (including death) caused by services rendered by the Company prior to Closing, notwithstanding the disclosure thereof in the Disclosure Schedule;
(vi) any Liability arising from guarantees, warranty claims or other Contract terms with respect to services rendered by the Company prior to Closing;
(vii) any accrued insurance charges or insurance claims, retroactive insurance rate adjustments or insurance premiums payable for pre-Closing periods; and
(viii) any amounts payable to the Partnership or the LLC, any other Affiliate of any Seller (including any Stockholder, Partner or Member) or any Retained Entity.
2.2.10 Any fees and expenses incurred by Seller in connection with negotiating, preparing, closing(b) Hub City shall not assume or pay any, and carrying the Partnership shall continue to be responsible for each, Liability of the Partnership whether or not relating to the Partnership's Business, not expressly assumed by Hub City in Section 2.6(b) (collectively, the "Partnership Retained Liabilities"). Specifically, without limiting the foregoing, the Partnership Retained Liabilities shall include the following:
(i) any Indebtedness or bank over-draft of the Partnership;
(ii) any legal or administrative action, including Environmental Claims, as of the Closing Date, notwithstanding the disclosure thereof in the Disclosure Schedule, or any subsequent claim, action, suit or proceeding arising out this Agreement of or relating to (A) such pending matters, (B) any other event occurring on or prior to the Closing Date, or (C) resulting from the Partnership's conduct of the Partnership's Business;
(iii) any Liability to the extent arising out of or relating to the Partnership Retained Assets;
(iv) any Liability (whether direct or as a result of transferee liability, joint and several liability, or contractual liability) of the Partnership for Taxes (including all income Taxes incurred on, after, or before the Closing Date) that are unrelated to the Partnership Purchased Assets, the Partnership's Business, or the Transferred Employees (whether accrued or payable on, after, or before the Closing Date and whether or not reserved for on the Closing Balance Sheet) and any liability (whether direct or as a result of transferee liability, joint and several liability, or contractual liability) for Taxes (other than Assumed Taxes) for periods (or portions thereof) ending on the Closing Date that are related to the Partnership Purchased Assets, the Partnership's Business, or the Transferred Employees (whether accrued or payable on, after, or before the Closing Date and whether or not reserved for on the Closing Balance Sheet);
(v) any Liability arising from claims, proceedings or causes of action resulting from property damage (including cargo claims) or personal injuries (including death) caused by services rendered by the Partnership prior to Closing, notwithstanding the disclosure thereof in the Disclosure Schedule;
(vi) any Liability arising from guarantees, warranty claims or other Contract terms with respect to services rendered by the Partnership prior to Closing;
(vii) any accrued insurance charges or insurance claims, retroactive insurance rate adjustments or insurance premiums payable for pre-Closing periods; and
(viii) any amounts payable to the Company or the LLC, any other Affiliate of any Seller (including any Stockholder, Partner or Member) (provided, that Hub City shall assume those accounts payable to the Retained Entities to the extent such payables are included in the Final Closing Balance Sheet as Current Liabilities).
(c) Comtrak shall not assume or pay any, and the transactions contemplated LLC shall continue to be responsible for each, Liability of the LLC whether or not relating to the LLC's Business, not expressly assumed by this AgreementComtrak in Section 2.6(c) (collectively, includingthe "LLC Retained Liabilities"). Specifically, without limitationlimiting the foregoing, the fees LLC Retained Liabilities shall include the following:
(i) any Indebtedness or bank over-draft of the LLC;
(ii) any legal or administrative action pending, including Environmental Claims, as of the Closing Date, notwithstanding the disclosure thereof in the Disclosure Schedule, or any subsequent claim, action, suit or proceeding arising out of or relating to (A) such pending matters, (B) any other event occurring on or prior to the Closing Date, or (C) resulting from the LLC's conduct of the LLC's Business;
(iii) any Liability to the extent arising out of or relating to the LLC Retained Assets;
(iv) any Liability (whether direct or as a result of transferee liability, joint and expenses several liability, or contractual liability) of Sellerthe LLC for Taxes (including all income Taxes incurred on, after, or before the Closing Date) that are unrelated to the LLC Purchased Assets, the LLC's attorneysBusiness, accountantsor the Transferred Employees (whether accrued or payable on, consultants after, or before the Closing Date and brokerswhether or not reserved for on the Closing Balance Sheet) and any liability (whether direct or as a result of transferee liability, joint and several liability, or contractual liability) for Taxes (other than Assumed Taxes) for periods (or portions thereof) ending on the Closing Date that are related to the LLC Purchased Assets, the LLC's Business, or the Transferred Employees (whether accrued or payable on, after, or before the Closing Date and whether or not reserved for on the Closing Balance Sheet);
(v) any Liability arising from claims, proceedings or causes of action resulting from property damage (including cargo claims) or personal injuries (including death) caused by services rendered by the LLC prior to Closing, notwithstanding the disclosure thereof in the Disclosure Schedule;
(vi) any Liability arising from guarantees, warranty claims or other Contract terms with respect to services rendered by the LLC prior to Closing;
(vii) any accrued insurance charges or insurance claims, retroactive insurance rate adjustments or insurance premiums payable for pre-Closing periods; and
(viii) any amounts payable to the Partnership or the Company, any other Affiliate of any Seller (including any Stockholder, Partner or Member) or any Retained Entity.
Appears in 1 contract
Retained Liabilities. Notwithstanding anything contained in this -------------------- Agreement to Other than the contraryAssumed Liabilities, Buyer does Purchaser shall not assume or agree to pay, satisfy, discharge or performand shall not be liable for, and will Seller shall retain and, as between Purchaser and Seller, remain solely liable for and obligated to discharge, all liabilities and obligations of Seller, whether known or unknown, accrued or not be deemed by virtue accrued, fixed or contingent, and arising out of or resulting from the operation of the execution Business (each a “Retained Liability” and delivery collectively, the “Retained Liabilities”), including but not limited to: (a) costs and expenses of Seller incurred or to be incurred by it in the negotiation and preparation of this Agreement or any document delivered at the execution of this Agreement, or as a result of the consummation of and carrying out the transactions contemplated by this Agreement, to have assumedincluding legal fees, (b) obligations, commitments or to have agreed to pay, satisfy, discharge or perform, other liabilities of Seller (each a “Liability”) under any liability or obligation Contract of the Seller other than the Assumed LiabilitiesAssigned Contracts, including any (c) Liabilities relating to the operation of the following liabilities or obligations of the Seller (the "Retained Liabilities"):
2.2.1 All obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
2.2.2 Other than taxes expressly allocated pursuant to other provisions of this Agreement, tax liabilities of any and all kinds (federal, state, local, and foreign) of Seller including, without limitation, any liabilities for taxes Business on or measured by incomebefore the Closing, liabilities for withheld federal and state income taxes and employee F.I.C.A. (Federal Insurance Contribution Actd) or employer F.I.C.A., and liabilities for income taxes arising as a result of the transfer of the Station Assets or otherwise by virtue of the consummation of the transactions contemplated hereby.
2.2.3 All liabilities or obligations of Seller owed to any of Seller or its Affiliates (as hereinafter defined);
2.2.4 All liabilities or obligations Liabilities arising out of any breach by Seller or any predecessor or Affiliate of Seller of any of the terms or conditions of any provision of any Real Estate Lease or Contract;
2.2.5 All liabilities and obligations of Seller or any predecessor or Affiliate of Seller resulting from, caused by or arising out of, any violation of law;
2.2.6 Any claims, liabilities, and obligations of Seller as an employer, including, without limitation, liabilities for wages, supplemental unemployment benefits, vacation benefits, severance benefits, retirement benefits, COBRA benefits, FAMLA benefits, WARN obligations and liabilities, or any other employee benefits, withholding tax liabilities, workers' compensation, or unemployment compensation benefits or premiums, hospitalization or medical claims, occupational disease or disability claims, or other claims attributable in whole or in part to employment or termination by Seller or arising out of any labor matter involving Seller as an employer, and any claims, liabilities and obligations arising from or relating to the Employee Benefit Plans.
2.2.7 Any claimsany product liability, liabilities, losses, damages, breach of warranty or expenses relating to any litigation, proceeding, or investigation of any nature arising out of the operations of the Stations on or prior to the Closing Date including, without limitation, any claims against or any liabilities similar claim for injury to person or death of persons or damage to or destruction of property, any workers' compensation claims, and any warranty claims.
2.2.8 Except as provided in Section 3.3, any accounts payable, other indebtedness, obligations or accrued liabilities of Seller.
2.2.9 Any liabilities or obligations resulting property which resulted from the failure to comply with use or imposed pursuant to any environmental protection, healthmisuse of, or safety laws otherwise related to Product, used, manufactured, or regulations or resulting from sold before the generationClosing, storage, treatment, transportation, handling, disposal, release of hazardous substances, solid wastes, (e) Seller’s liabilities for Taxes and liquid and gaseous matters by Seller and by any other person in relation all liabilities for Taxes attributable to Seller the Assets or the Stations, including, without limitation, any liability Business for all taxable periods (or obligation for cleaning up waste disposal sites from or related to acts or omissions portions thereof) ending on or prior to the Closing Date.
2.2.10 Any fees , (f) litigation currently pending against Seller or, to the knowledge of Seller, currently threatened against Seller, (g) obligations, liabilities and expenses incurred by commitments of Seller in connection with negotiatingrespect to any employee or contractor of Seller or the Business, preparingincluding for salary, closingwages, overtime, severance, benefits or other monetary obligations relating or owed to any of such employees or contractors, (h) obligations, commitments and liabilities arising from the Excluded Assets, and carrying out this Agreement (i) other obligations, liabilities and the transactions contemplated by this Agreement, including, without limitation, the fees and expenses commitments of Seller's attorneys, accountants, consultants and brokersSeller that are not an Assumed Liability.
Appears in 1 contract
