Assumed and Excluded Liabilities Clause Samples
The "Assumed and Excluded Liabilities" clause defines which liabilities a party will take on and which will remain with the other party, typically in the context of an asset purchase or business transfer. In practice, this clause lists specific obligations, debts, or claims that the buyer agrees to assume, such as certain contracts or warranties, while explicitly excluding others, like pre-existing lawsuits or tax liabilities. Its core function is to clearly allocate responsibility for liabilities between the parties, preventing disputes over who is accountable for particular obligations after the transaction closes.
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Assumed and Excluded Liabilities. (a) The applicable Transferred Company shall assume or retain and be responsible, from and after the Closing, for (i) all of the Liabilities of Seller and its Subsidiaries to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets, whether incurred before, on or after the Closing, including the Liabilities of the Transferred Companies under this Agreement and the Ancillary Documents (other than the Excluded Liabilities and except as otherwise expressly provided in this Agreement) including Liabilities (to the extent relating to, arising out of or resulting from the Transferred Business, the Transferred Companies or the ownership or operation of the Transferred Assets) (A) in respect of leased vehicles, equipment leases, Transferred Real Property Leases, or any of the Transferred Companies’ use and occupancy of leased premises, (B) arising from existing orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities, (C) arising from new orders of or agreements with the State Commissions, Video Franchisors and other regulatory authorities imposed or agreed to during the course of approval for the transactions contemplated by this Agreement, (D) arising from customer service obligations and contracts, (E) for customer deposits, prepayments and advance ▇▇▇▇▇▇▇▇ and (F) arising out of or related to any of the Transferred Real Property; and (ii) all Liabilities in respect of the Assigned Contracts or Unassigned Assets or yet to be novated Federal Government Contracts as provided in Section 2.4 ((i) and (ii) collectively, the “Assumed Liabilities”) and (b) one or more members of the Seller Group, as applicable, shall assume and be responsible for (i) all of the Liabilities of the Transferred Companies to the extent relating to, arising out of or resulting from an Excluded Asset or any other asset specifically retained by the Seller Group at the Closing pursuant to this Agreement or an Ancillary Document, whether incurred before, on or after the Closing, provided, however, that this clause (b)(i) shall not apply to any Intellectual Property to the extent used or practiced in the Transferred Business before, on or after the Closing; (ii) any Liability of Seller or any of its Subsidiaries to their employees in their capacity as employers under any employee benefits or similar plans, or under any workers compensation Law...
Assumed and Excluded Liabilities. (a) Subject to the terms and conditions set forth herein, at the Transfer Time, BioMarin shall assume and agree to pay, perform and discharge the following Liabilities, except for the Excluded Liabilities (collectively, the “Assumed Liabilities”):
(i) all Liabilities arising out of or relating to claims (including product liability claims) for injury to person or property that resulted from the use or misuse of the Products sold or used on or after the Transfer Time, including the use or misuse of the Products in connection with any clinical trial;
(ii) all Liabilities of BioMarin or its Affiliates set forth in Section 6.06 of this Agreement;
(iii) all Excluded BioMarin Tax Liabilities;
(iv) all Liabilities for Taxes arising out of or relating to BioMarin’s failure to pay its share of Transfer Taxes or Apportioned Obligations allocated to BioMarin under Section 6.07(b); and
(v) all Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder (i) relate to the Products, (ii) do not relate to any failure to perform, or other breach, default or violation by Merck Serono prior to the Transfer Time and (iii) arise on or after the Transfer Time.
(b) Notwithstanding any provision of this Agreement or the License Agreement to the contrary, neither BioMarin nor any of its Affiliates shall assume any Liabilities of Merck Serono or any of its Affiliates other than the Assumed Liabilities, and all such other Liabilities shall remain the sole obligation and responsibility of Merck Serono and its Affiliates (the “Excluded Liabilities”).
Assumed and Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, on the Closing Date, Purchaser shall assume and agree to perform and discharge, when due (in accordance with their respective terms and subject to the respective conditions thereof), and Seller shall, and shall cause its Subsidiaries to, irrevocably convey, transfer, assign and deliver to Purchaser, only the following obligations, Claims and Liabilities of Seller and its Subsidiaries and no others (collectively, the “Assumed Liabilities”): (i) Liabilities under the Assumed Contracts arising on and after the Closing, and (ii) all Cure Costs related to the Assumed Contracts.
(b) Seller and its applicable Subsidiaries (excluding the Acquired Subsidiaries) shall retain, and shall be responsible for paying or performing when due, or discharging, and shall pay or perform when due, or discharge, and the Purchaser shall not assume or have any responsibility for, any Liabilities of Seller or its Subsidiaries not expressly assumed by Purchaser pursuant to Section 2.3(a) of this Agreement (the “Excluded Liabilities”). The term Excluded Liabilities shall specifically include, without limitation:
(i) Taxes accruing during the Pre-Closing Tax Period;
(ii) Any and all Liabilities to the extent primarily relating to the Excluded Assets;
(iii) Any and all Liabilities of Seller under this Agreement and all legal, accounting, brokerage, investment banking and finder’s fees or other fees and expenses incurred by or on behalf of Seller in connection with this Agreement and the transactions contemplated hereby;
(iv) Any and all Liabilities and obligations to current and former employees or contractors of Seller or any of its Subsidiaries;
(v) Any and all Liabilities and obligations arising out of or relating to any line-of-credit or other payable or debt facility or instrument (except to the extent such Liabilities are incurred under an Assumed Contract); and
(vi) All Liabilities related to, associated with or arising out of any action, Claim, suit or proceeding to the extent primarily with respect to the operation of the Business prior to the Closing, whether such action, Claim, suit or proceeding is brought prior to, on or after the Closing.
Assumed and Excluded Liabilities. On the Closing Date, Buyer -------------------------------- shall execute and deliver to Seller the Assignment and Assumption Agreement pursuant to which from and after the Closing Buyer shall assume and agree to pay, perform and discharge when due, and shall indemnify Seller and its Affiliates (including the Selling Subsidiaries) against and hold them harmless from, all the liabilities and obligations of Sellers relating primarily to the Business or the Assets, of any kind or nature, whether absolute, contingent, accrued or otherwise, and whether arising before or after the Closing (collectively, the "Assumed Liabilities"); provided, however, that the Assumed Liabilities shall in no event include the following liabilities (the "Excluded Liabilities"):
(a) any liability, responsibility or obligation under any Seller Plan (including, without limitation, any liability, responsibility or obligation to any Governmental Authority with respect to the transfer of assets under Seller Plans), except as provided in the Employee Matters Agreement;
(b) any liability for Taxes of Seller, Taxes of the Sold Subsidiaries and Taxes arising out of and relating to the ownership of the Assets and the operation of the Business, in each case for any period or portion thereof ending on or prior to the Closing Date, excluding the Taxes that are the responsibility of Buyer pursuant to Section 2.7 or those reflected on the Closing Statement (other than any reserves for deferred Taxes established to reflect timing differences between book and Tax income);
(c) any obligation of Seller under and pursuant to any commodity options, puts, calls, forwards or similar agreements with respect to commodities used by the Business;
(d) any liability arising from or related to the Excluded Assets;
(e) all notes, drafts and accounts payable or other obligations for the payment of money made or owed to any Affiliate of Seller;
(f) all liabilities and obligations associated with (i) the pre- Closing offsite transportation and disposal of Hazardous Material, (ii) the presence or release of Hazardous Material either in, on, under or from any former facility, (iii) Remedial Action related solely to the PDC Plume and (iv) the regulatory closure of the two remaining solid waste management units at the Hawthorne facility;
(g) all (i) indebtedness of Sellers for borrowed money, (ii) obligations of Sellers evidenced by bonds, notes, debentures or similar instruments, (iii) obligations under conditional sal...
Assumed and Excluded Liabilities. On the Closing Date, Buyer shall execute and deliver to Sellers the Assignment and Assumption Agreement pursuant to which Buyer shall assume and agree to pay, perform and discharge when due, all the liabilities and obligations of Sellers arising out of the Business, of any kind or nature, whether absolute, contingent, accrued or otherwise, and whether arising before or after the Closing including, without limitation, all liabilities and obligations for (i) Taxes assumed by Buyer under Section 2.7, (ii) under the Assigned Contracts and (iii) all liabilities and obligations of Buyer set forth in Article IX hereof (collectively, the "Assumed Liabilities"); PROVIDED, HOWEVER, that the Assumed Liabilities shall in no event include the following liabilities (the "Excluded Liabilities"):
(a) any liability in respect of litigation pending (including the EEOC Charge) against any Seller or Company in respect of the Business prior to the Closing Date and set forth on Schedule 4.8 hereto;
(b) any liability, responsibility or obligation with respect to (i) any Seller Plan, except as provided in Article IX and, subject to clause (ii), excluding any Assigned Contract, (ii) any payments required to be made under any severance or change of control plan or agreement and (iii) any payroll or payroll tax obligation;
(c) any liability for (i) warranty claims made after the Closing Date for service, repair, replacement and similar work required under the Business' written warranties with respect to products sold or services provided prior to the Closing, the expenses of which in the aggregate exceed the warranty reserve on the Final Closing Balance Sheet, (ii) claims under health insurance plans of Seller for covered Business Employees with respect to services rendered prior to the Closing Date, (iii) any product liability claims for injuries, property damage or other Losses incurred prior to the third anniversary of the closing Date in respect of any product manufactured by a Seller or a Company prior to the Closing Date, (iv) any claims based upon an employee of the Business' exposure to asbestos prior to the Closing Date or (v) any liability for workers' compensation claims for injuries incurred prior to the Closing Date, but only if written notice of such claims described in clause (i), (ii), (iv) or (v) shall have been delivered to Seller within the two-year period following the Closing Date;
(d) any liability for Taxes of Seller (but not of the Companies) for any period o...
Assumed and Excluded Liabilities. (a) Except with respect to any of the liabilities set forth on Schedule C attached hereto, Buyer shall not assume or be bound by any obligations, liabilities (including without limitation, liabilities in respect of Taxes, “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended) or any other pension plans or employee benefit arrangements) or commitments of Seller or any of its affiliates of any kind, character or description, whether absolute, accrued, known, unknown, asserted, unasserted, due or to become due, contingent or otherwise (“Liabilities”), in connection with the Assets or otherwise.
(b) Any ad valorem Taxes relating to a period straddling the Closing Date shall be prorated to the Closing Date, and the portion allocable to the period prior to the Closing Date shall be promptly paid or reimbursed by Seller, and the portion allocable to the period after the Closing Date shall be promptly paid or reimbursed by Buyer. All other Liabilities of Seller shall remain the sole responsibility of Seller.
Assumed and Excluded Liabilities. From and after the Closing, DISH shall, or shall cause its Subsidiaries, as applicable, to be responsible for the EB Assumed Liabilities and the ET Assumed Liabilities regardless of when or where such Liabilities (or the acts or omissions relating thereto) arose or arise, regardless of when or where such Liabilities are asserted or determined and regardless of whether arising or related to or asserted or determined prior to, on or after the Closing Date. EchoStar shall, or shall cause its Subsidiaries, as applicable, to be responsible for the EB Excluded Liabilities and the ET Excluded Liabilities regardless of when or where such Liabilities (or the acts or omissions relating thereto) arose or arise, regardless of when or where such Liabilities are asserted or determined and regardless of whether arising or related to or asserted or determined prior to, on or after the Closing Date.
Assumed and Excluded Liabilities. 8.1 With effect from Completion, the Purchaser shall indemnify and keep indemnified the Business Sellers against:
(a) all Assumed Liabilities;
(b) any Losses which the Business Sellers and/or any other member of the Seller’s Group (other than the Group Companies) may suffer by reason of the Business Sellers taking any reasonable action to avoid, resist or defend against, or otherwise in connection with or arising from, any Assumed Liabilities; and
(c) any Losses which the Business Sellers and/or any other member of the Seller’s Group (other than the Group Companies) may suffer where such Business Sellers and/or other member of the Seller’s Group are held liable for Losses incurred or attributable to the EEIG Interests, in each case arising and relating to the period after Completion.
8.2 With effect from Completion, the Seller shall indemnify and keep indemnified the Purchaser and the Business Purchasers against:
(a) all Excluded Liabilities; and
(b) any Losses which the Business Purchasers and/or any other member of the Purchaser’s Group may suffer by reason of the Business Purchasers taking any reasonable action to avoid, resist or defend against, or otherwise in connection with or arising from, any Excluded Liability or any Excluded Asset.
Assumed and Excluded Liabilities. From and after the Distribution Closing, Newco shall be, or shall cause its Subsidiaries or Affiliates (which, for the avoidance of doubt, will include, after the Closing, DISH and its Subsidiaries) to be, responsible for the Assumed Liabilities regardless of when or where such Liabilities (or the acts or omissions relating thereto) arose or arise, regardless of when or where such Liabilities are asserted or determined and regardless of whether arising or related to or asserted or determined prior to, on or after the Distribution Closing Date. EchoStar shall be, or shall cause its Subsidiaries to be, responsible for the Excluded Liabilities regardless of when or where such Liabilities (or the acts or omissions relating thereto) arose or arise, regardless of when or where such Liabilities are asserted or determined and regardless of whether arising or related to or asserted or determined prior to, on or after the Distribution Closing Date.
Assumed and Excluded Liabilities. Subject to the terms and conditions set forth herein, at the Closing, Purchaser shall assume from the Seller Parties, and thereafter pay, perform, or discharge in accordance with their terms, the liabilities set forth on Schedule 2.2. The liabilities to be assumed pursuant to the preceding sentence shall be referred to herein as the "Assumed Liabilities" and all other liabilities and Obligations of the Seller Parties shall be referred to herein as the "Excluded Liabilities." Notwithstanding anything contained in this Agreement to the contrary, Purchaser is not assuming or agreeing to pay, satisfy, discharge or perform, and shall not be deemed by virtue of the execution and delivery of this Agreement or any document delivered at the 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 or perform, any liability, Obligation or indebtedness of any Seller Party, whether primary or secondary, direct or indirect, other than the Assumed Liabilities. Seller Parties shall retain all of the Excluded Liabilities. Without limiting the foregoing, the Seller Parties shall be responsible for paying any and all Cure-Amounts necessary to assume and assign the Assigned Contracts and Leases to Purchaser.