Retained Liabilities Seller and its Affiliates shall retain responsibility for (x) the Commercialization Agreement Retained Liabilities and (y) the following Liabilities, to the extent relating to the Business (collectively, the “Retained Liabilities”), in each case except to the extent Purchaser or its Affiliates indemnify Seller and its Affiliates under provisions of the Commercialization Agreement that survive termination pursuant to Section 10.05 hereof:
(a) all Liabilities to the extent related to the Excluded Assets;
(b) all Liabilities arising out of or relating to any Transferred Contract prior to the Cutoff Time, to the extent relating to the period of time prior to the Cutoff Time, except to the extent Purchaser is liable for such Liabilities under the Commercialization Agreement;
(c) all Liabilities with respect to (i) any current or former employee or contractor of Seller or any Divesting Entity, or any of their Affiliates, provided such Liabilities relate to such current or former employee or contractor’s service with Seller or any Divesting Entity or (ii) any Plan;
(d) all Liabilities (i) of Income Taxes of Seller or its Affiliates for any period(other than amounts payable pursuant to agreements that constitute Assumed Liabilities), (ii) any sales, use, value added or other similar Taxes that Seller was required to collect and remit to a Taxing Authority prior to the Cutoff Time, arising from Seller’s (or an Affiliate of Seller’s) use of the Purchased Assets or operation of the Business prior to the Cutoff Time, or (iii) for Taxes apportioned to Seller under Section 2.10;
(e) all Liabilities related to any Accounts Payable except as expressly set forth in this Agreement or to the extent Purchaser is liable for such Liabilities under the Commercialization Agreement;
(f) all Liabilities for any indebtedness of Seller or its Affiliates;
(g) all intragroup Liabilities of Seller or any Divesting Entity to any of its Affiliates;
(h) other than the Assumed Liabilities and the Commercialization Agreement Assumed Liabilities, all other Liabilities (excluding Liabilities relating to Taxes, which shall be governed by Section 2.04(d)) arising out of or relating to the Business or the Purchased Assets, to the extent such Liabilities relate to the period of time prior to the Cutoff Time; and
(i) all Liabilities set forth on Section 2.04(i) of the Disclosure Schedule. References to the retention of Retained Liabilities shall not imply that Seller actually has any such Liabilities arising from its ownership of the Purchased Assets prior to the Closing Date, nor shall anything in this Section 2.04 limit or modify the obligations of Seller under the Commercialization Agreement with respect to the Commercialization Agreement Retained Liabilities for the period beginning on January 9, 2018 and ending at the Cutoff Time.
Undisclosed Liabilities The Company has no liabilities or obligations of any nature (whether fixed or unfixed, secured or unsecured, known or unknown and whether absolute, accrued, contingent, or otherwise) except for liabilities or obligations reflected or reserved against in the Company Financial Statements incurred in the ordinary course of business or such liabilities or obligations disclosed in Schedule 2.01(g).
Excluded Liabilities Except for the Assumed Liabilities, neither Buyer nor any of its Affiliates shall assume or otherwise be liable in respect of, or be deemed to have assumed or otherwise be liable in respect of, any debt, claim, obligation, or other Liability of Seller, or any of its Affiliates, regardless of whether such debt, claim, obligation, or other Liability is matured or unmatured, contingent or fixed, known or unknown (the “Excluded Liabilities”). Excluded Liabilities shall include, without limitation:
(i) any long-term debt or notes payable of Seller and any Liability of Seller to any of its Affiliates;
(ii) any Liability for Taxes of Seller (including liability for Taxes arising from any Tax sharing agreement, Tax indemnity agreement or Tax allocation agreement) for any Taxable Period, any liability for Taxes of the Business or related to the Assets properly attributable to the portion of the Taxable Period that includes the Effective Date through and including the Effective Date, and any Tax Liability arising from the sale of the Business and the Assets to Buyer contemplated herein or from any liquidation and dissolution of Seller;
(iii) any Liability of or claim against Seller that constitutes or arises from a breach by Seller of any representation, warranty or covenant herein;
(iv) any Liability of Seller or claim of any kind that may arise from Seller’s operation of the Business, ownership of the Assets or under the Assumed Contracts relating to the time period prior to the Effective Date or arising out of events occurring prior to the Effective Date (including liabilities for breach by Seller prior to Closing) or resulting from Seller’s consummation of the transactions contemplated by this Agreement;
(v) any Liability of or claim against Seller that may arise from the rendering of investment banking, brokerage fees, professional, legal, accounting, appraisal, engineering or other similar services to Seller in connection with the transactions herein;
(vi) any Liability of Seller arising out of or relating to the employment of, performance of services by or termination of any employees, whether written or oral, express or implied, including any Liability (A) consisting of, arising out of or relating to severance, accrued vacation, termination, retention bonus, “golden parachute”, any Benefit Plan or corporate policy, unemployment compensation or any similar or other payment, with respect to any employee of Seller; (B) resulting from the consummation of the transactions contemplated by this Agreement or the termination of any employees in connection therewith under the Workers Adjustment and Retraining Notification Act of 1988, as amended from time to time; (C) resulting from workers’ compensation or other similar claims, or (D) arising out of or relating to any Benefit Plan;
(vii) any and all claims of employees, consultants or independent contractors of Seller in such capacity;
(viii) any Liability under any Contract not included in the Assumed Contracts;
(ix) any Liability under any Assumed Contract for which a Consent, if required, has not been obtained or waived as of the Closing;
(x) any forfeiture, claim or pending litigation, arbitration or proceeding relating to the Business arising prior to the Effective Date (which shall remain and be the obligation and liability solely of Seller);
(xi) any Liability, other than the Assumed Liabilities; and
(xii) any liability related to any Excluded Asset, unless otherwise expressly assumed by Buyer herein. For the avoidance of doubt, Seller shall not retain and Buyer is assuming and will pay the Assumed Current Liabilities. Seller agrees that it shall pay promptly when due any and all Excluded Liabilities not discharged by it at or prior to Closing, including any of Seller’s Liabilities related to Seller’s employees during the period they are employed by Seller or the Benefit Plans. Buyer is not the successor employer of Seller’s employees for any purpose and is not required to employ any of such employees.
Assumed Liabilities Subject to the terms and conditions set forth herein, and in reliance upon the representations and warranties contained herein, at the Closing, in consideration for the sale, assignment, conveyance, transfer and delivery of the Assets to Buyer, Buyer will assume and undertake to pay, perform and discharge, in accordance with the terms thereof, only the following Liabilities of the Company incurred in the ordinary course of business (the "Assumed Liabilities"):
(a) express contractual performance obligations arising after the Effective Time (other than obligations relating to those Liabilities listed in clauses (a) through (r) of the definition of Retained Liabilities) of the Company arising under Contracts that constitute Assets (it being understood and agreed that, except as provided in clause (c) of this Section 3.1, Assumed Liabilities described in this clause (a) will exclude any amounts due or payable as of the Effective Time under or in respect of Contracts that constitute Assets);
(b) Liabilities expressly assumed by Buyer pursuant to Article X; and
(c) Liabilities (other than those Liabilities listed in clauses (a) through (r) of the definition of Retained Liabilities) which are not included in clause (a) or (b) of this Section 3.1, but only to the extent and in the amounts provided for on the Final Closing Statement. The parties understand and agree that the Liabilities to be assumed under this Section 3.1(c) shall be such Liabilities to the extent and in the amounts provided for on the Estimated Closing Statement pending the determination of the Final Closing Statement and that Buyer shall treat such Liabilities shown on the Estimated Closing Statement as Liabilities assumed by Buyer pending the determination of the Final Closing Statement. Buyer will assume no other Liabilities whatsoever.
Absence of Undisclosed Liabilities Priveco does not have any material Liabilities or obligations either direct or indirect, matured or unmatured, absolute, contingent or otherwise that exceed $5,000, which:
(a) are not set forth in the Priveco Financial Statements or have not heretofore been paid or discharged;
(b) did not arise in the regular and ordinary course of business under any agreement, contract, commitment, lease or plan specifically disclosed in writing to Pubco; or
(c) have not been incurred in amounts and pursuant to practices consistent with past business practice, in or as a result of the regular and ordinary course of its business since the date of the last Priveco Financial Statements
No Undisclosed Liabilities Local Church has, and at the Disaffiliation Date will have, no debts, liabilities, commitments, or obligations of any nature, absolute, accrued, contingent or otherwise, relating to its business, other than those which (a) are fully reflected or reserved against on the Financial Statements (defined below) or (b) have been incurred since the date of the most recent balance sheet included in the Financial Statements in the ordinary course of business in amounts and for terms consistent, individually and in the aggregate, with the past practices of its business. Except as shown in the Financial Statements, the Local Church is not directly or indirectly liable upon or with respect to (by discount, repurchase agreements or otherwise), or obliged in any other way to provide funds in respect of, or to guarantee or assume, any debt, obligation or dividend of any other party, except endorsements in the ordinary course of business in connection with the deposit, in banks or other financial institutions, of items for collection.
Financial Statements; No Undisclosed Liabilities (a) Seller has delivered true, correct and complete copies of the Audited Financial Statements to Buyer. The Audited Financial Statements (i) have been prepared in accordance with GAAP, and (ii) present fairly in all material respects the financial condition, results of operations, statements of cash flow and changes in shareholder equity of each of (i) Xxxxx USA and its subsidiaries and (ii) Banner Europe, in each case as at the dates and for the relevant periods indicated in accordance with GAAP applied on a consistent basis through the periods covered thereby.
(b) Except as set forth on Section 4.6(b) of the Disclosure Letter, the Unaudited Interim Financial Statements (i) have been prepared in accordance with GAAP applied consistently through the periods covered thereby, and (ii) present fairly in all material respects the financial condition, results of operations, statements of cash flow and changes in shareholder equity of each of (i) Xxxxx USA and its Subsidiaries and (ii) Banner Europe, in each case as at the dates and for the relevant periods indicated in accordance with GAAP applied on a basis consistent with prior periods (except as otherwise indicated therein or in the notes thereto); provided, however, that the Unaudited Interim Financial Statements are subject to normal year-end adjustments and lack footnotes and other presentation items.
(c) Except as set forth on Section 4.6(c) of the Disclosure Letter, each Banner Company maintains internal controls over financial reporting that provide reasonable assurance that: (i) receipts and expenditures are made, and access to each Banner Company’s assets are permitted only in accordance with, management’s authorization; (ii) each Banner Company’s books and records accurately and fairly reflect in reasonable detail the transactions and dispositions of the assets of such Banner Company; (iii) the reporting of the assets of each Banner Company is compared with existing assets at regular intervals; and (iv) transactions are recorded as necessary to permit preparation of financial statements of each Banner Company in accordance with GAAP and to maintain accountability for the assets of such Banner Company.
(d) Except as set forth on Section 4.6(d) of the Disclosure Letter, neither (i) Xxxxx USA and its Subsidiaries, nor (ii) Banner Europe has any liabilities of a nature required by GAAP to be reflected in a balance sheet or in notes thereto, except those (A) reflected or reserved against in the Audited Financial Statements (or described in the notes thereto) or in the Unaudited Interim Financial Statements, (B) set forth or reflected in the Disclosure Letter hereto, or (C) incurred in the ordinary course of business consistent with past practice since the Reference Statement Date.