Assumed and Retained Liabilities. (a) At closing Buyer shall assume only the following Liabilities (collectively, the “Assumed Liabilities”): (i) All trade accounts payable with respect to any period on or after Closing to third parties in connection with the Business as conducted on and after the Closing; (ii) All Liabilities arising under or relating to the Assigned Contracts that arise or accrue under such contracts on and after the Closing; (iii) All Liabilities for (A) Asset Taxes allocable to Buyer pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Buyer pursuant to Section 5.2 and (C) Taxes allocable to Buyer pursuant to Section 5.1; (iv) All Liabilities arising out of Buyer or its Affiliate’s employment of the Business Employees, including compensation or other similar arrangements (including the employer portion of any employment or payroll Taxes related thereto) and accrued but unpaid vacation and leave, but, for the avoidance of doubt, specifically not any Liabilities arising out of Sellers’ employment of the Business Employees prior to Closing, which shall be Retained Liabilities; (v) All Liabilities under applicable Environmental Laws arising out of relating to ▇▇▇▇▇’s ownership or operation of the Purchased Assets on or after the Closing Date; and (vi) All other Liabilities arising out of or relating to the Purchased Assets or operation of the Business on or after the Closing. (b) Notwithstanding anything in this Agreement to the contrary, other than the Assumed Liabilities, Sellers shall retain and be responsible for all Liabilities of Sellers, and neither Buyer nor any Affiliate of Buyer shall assume, or in any way be liable or responsible for or take subject to any Liabilities of the Business, Seller or any Affiliate of Seller (collectively, the “Retained Liabilities”). Without limiting the foregoing, the Retained Liabilities shall include the following Liabilities of Sellers, whether or not such Liabilities are disclosed in any of the representations and warranties in this Agreement or on any Schedule with respect to such representations and warranties: (i) All Liabilities to the extent arising under, or relating to the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement; (ii) All trade accounts payable with respect to any period prior to Closing to third parties in connection with the Business; (iii) All Liabilities for (A) Asset Taxes allocable to Sellers pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Sellers pursuant to Section 5.2 and (C) Taxes allocable to Sellers pursuant to Section 5.1; (iv) All Liabilities to the extent arising out of Sellers or their Affiliates’ employment of the Business Employees prior to Closing, including, but not limited to, all compensation and benefits (including, but not limited to, all salaries, wages and commissions); any benefits due, earned, or accrued pursuant to any Employee Benefit Plan; the employer portion of any employment or payroll Taxes on any of the foregoing; any Liabilities for the termination or severance of any Business Employees by Sellers on or before Closing; and all Losses or Claims by or for the benefit of any Business Employees incurred or arising prior to Closing, including, but not limited to any Losses or Claims pursuant to any federal or state labor or employment Laws; provided, that notwithstanding the foregoing, accrued but unpaid vacation and leave shall not be Retained Liabilities; (v) All Liabilities to the extent arising under any Contracts other than Assigned Contracts; (vi) Any breach of this Agreement by Sellers, including, but not limited to, any breach of any warranty, representation, or covenant of Sellers’ contained herein; (vii) All Liabilities of any kind or nature for fees and expenses referred to in Section 3.8; (viii) All Liabilities in connection with any matter or with respect to, or arising out of, any events, actions or inactions prior to the Closing Date, including all Liabilities with respect to services provided, products sold and acts or omissions prior to the Closing Date, including Liabilities for personal injury (including death), property damage, and warranty claims; (ix) All Liabilities to the extent related to the Excluded Assets; (x) All Liabilities for amounts due in respect of any Taxes of Sellers; (xi) All Liabilities under applicable Environmental Laws arising out of or relating to Sellers’ ownership or operation of the Purchase Assets on or prior to the Closing Date; (xii) All Liabilities for (i) Sellers’ exposure of any Person to asbestos containing products manufactured, sold, serviced, repaired or otherwise handled prior to the Closing Date, or (ii) Sellers’ exposure of any Person to asbestos containing equipment or any asbestos on or in the Real Property prior to the Closing Date; (xiii) Liabilities for warranties and other guarantees provided to customers of Seller and the Business prior to the Closing Date, other than pursuant to Assigned Contracts; (xiv) All Liabilities of Sellers to any present or former Representative or Affiliate of Sellers; (xv) All Liabilities for violations of Laws by Sellers prior to the Closing Date; (xvi) All other Liabilities to the extent arising out of or relating to the Purchased Assets prior to the Closing Date that are not Assumed Liabilities.
Appears in 1 contract
Assumed and Retained Liabilities. (a) At closing Buyer shall assume only On the following Liabilities (collectivelyClosing Date, but effective as of the Effective Time, the “Assumed Liabilities”):
Buyer will assume and agree to pay, perform and discharge only those Liabilities of the Seller that first arise after the Effective Time under the Assigned Contracts and the Lease in accordance with the stated written terms thereof, but excluding (i) All trade accounts payable with respect to any period on or after Closing to third parties in connection with the Business as conducted on and after the Closing;
(ii) All Liabilities arising under or relating Liability to the Assigned Contracts that arise or accrue under such contracts on and after the Closing;
(iii) All Liabilities for (A) Asset Taxes allocable to Buyer pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Buyer pursuant to Section 5.2 and (C) Taxes allocable to Buyer pursuant to Section 5.1;
(iv) All Liabilities arising out of Buyer or its Affiliate’s employment of the Business Employees, including compensation or other similar arrangements (including the employer portion of any employment or payroll Taxes related thereto) and accrued but unpaid vacation and leave, but, for the avoidance of doubt, specifically not any Liabilities arising out of Sellers’ employment of the Business Employees prior to Closing, which shall be Retained Liabilities;
(v) All Liabilities under applicable Environmental Laws arising out of relating to ▇▇▇▇▇’s ownership or operation of the Purchased Assets on or after the Closing Date; and
(vi) All other Liabilities extent arising out of or relating to any Breach by the Purchased Assets Seller thereunder or operation as a result of the Business Closing and (ii) any indemnification or similar Liabilities (whether or not based on a Breach) to the extent arising out of or relating to actions, omissions, circumstances or events occurring or existing on or after prior to the ClosingClosing Date or as a result of the Closing (subject to such exclusions, the “Assumed Contract Liabilities”).
(b) Notwithstanding anything in this Agreement to the contrary, other than Except for the Assumed Contract Liabilities, Sellers shall retain the Buyer is not assuming and be responsible for all Liabilities expressly disclaims the assumption of Sellers, and neither Buyer nor any Affiliate of Buyer shall assume, or in any way be liable or responsible for or take subject to any Liabilities of the BusinessSeller, whether or not such Liabilities arise from or relate to the Purchased Assets (all such Liabilities of the Seller or any Affiliate of Seller (collectively, are referred to herein as the “Retained Liabilities”). Without limiting the generality of the foregoing, and solely for purposes of clarity, the Retained Liabilities shall include the following Liabilities of Sellers, whether or not such Liabilities are disclosed in any of the representations and warranties in this Agreement or on any Schedule with respect to such representations and warrantiesinclude:
(i) All all Liabilities to the extent arising under, from or relating to accrued expenses, accounts payable, indebtedness or other payment obligations;
(ii) all Liabilities arising from or relating to any Encumbrances (including Permitted Encumbrances);
(iii) all Liabilities for Taxes of the execution Seller whenever and delivery however arising, including Taxes of this Agreement and the consummation of Seller arising from or relating to the transactions contemplated by this Agreement;
(ii) All trade accounts payable with respect to any period prior to Closing to third parties in connection with the Business;
(iii) All Liabilities for (A) Asset Taxes allocable to Sellers pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Sellers pursuant to Section 5.2 and (C) Taxes allocable to Sellers pursuant to Section 5.1;; and
(iv) All all Liabilities arising from or relating to the extent arising out employment, retention or termination of Sellers current or their Affiliates’ employment former employees or independent contractors of the Business Employees prior to Closing, including, but not limited to, all compensation and benefits Seller (including, but not limited to, all salaries, wages and commissions); including any benefits due, earned, employees or accrued pursuant to any Employee Benefit Plan; the employer portion of any employment or payroll Taxes on any independent contractors of the foregoing; any Liabilities for Seller hired or retained by the termination or severance of any Business Employees by Sellers on or before Closing; and all Losses or Claims by or for the benefit of any Business Employees incurred or arising prior to Closing, including, but not limited to any Losses or Claims pursuant to any federal or state labor or employment Laws; provided, that notwithstanding the foregoing, accrued but unpaid vacation and leave shall not be Retained Liabilities;
(v) All Liabilities to the extent arising under any Contracts other than Assigned Contracts;
(vi) Any breach of this Agreement by Sellers, including, but not limited to, any breach of any warranty, representation, or covenant of Sellers’ contained herein;
(vii) All Liabilities of any kind or nature for fees and expenses referred to in Section 3.8;
(viii) All Liabilities in connection with any matter or with respect to, or arising out of, any events, actions or inactions prior to the Closing DateBuyer), including all Liabilities with respect to services providedfor salaries, products sold and acts bonuses, option payouts, withholding, expense reimbursements, benefits or omissions prior to the Closing Date, including Liabilities for personal injury (including death), property damage, and warranty claims;
(ix) All Liabilities to the extent related to the Excluded Assets;
(x) All Liabilities for amounts due in respect of any Taxes of Sellers;
(xi) All Liabilities under applicable Environmental Laws arising out of or relating to Sellers’ ownership or operation of the Purchase Assets on or prior to the Closing Date;
(xii) All Liabilities for (i) Sellers’ exposure of any Person to asbestos containing products manufactured, sold, serviced, repaired or otherwise handled prior to the Closing Date, or (ii) Sellers’ exposure of any Person to asbestos containing equipment or any asbestos on or in the Real Property prior to the Closing Date;
(xiii) Liabilities for warranties and other guarantees provided to customers of Seller and the Business prior to the Closing Date, other than pursuant to Assigned Contracts;
(xiv) All Liabilities of Sellers to any present or former Representative or Affiliate of Sellers;
(xv) All Liabilities for violations of Laws by Sellers prior to the Closing Date;
(xvi) All other Liabilities to the extent arising out of or relating to the Purchased Assets prior to the Closing Date that are not Assumed Liabilitiesseverance payments.
Appears in 1 contract
Assumed and Retained Liabilities. (a) At closing Buyer 4.1 The Seller and its Affiliates shall retain, and shall be responsible for paying, performing and discharging when due, and the Purchaser shall not assume only the following Liabilities (collectively, the “Assumed Liabilities”):
(i) All trade accounts payable or have any responsibility for and shall be held harmless and indemnified by Seller and its Affiliates with respect to any period on or after Closing to third parties in connection with the Business as conducted on and after the Closing;
(ii) All Liabilities arising under or relating to the Assigned Contracts that arise or accrue under such contracts on and after the Closing;
(iii) All Liabilities for (A) Asset Taxes allocable to Buyer pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Buyer pursuant to Section 5.2 and (C) Taxes allocable to Buyer pursuant to Section 5.1;
(iv) All Liabilities arising out of Buyer or its Affiliate’s employment of the Business Employees, including compensation or other similar arrangements (including the employer portion of any employment or payroll Taxes related thereto) and accrued but unpaid vacation and leave, but, for the avoidance of doubt, specifically not any Liabilities arising out of Sellers’ employment of the Business Employees prior to Closing, which shall be Retained Liabilities;
(v) All Liabilities under applicable Environmental Laws arising out of relating to ▇▇▇▇▇’s ownership or operation of the Purchased Assets on or after the Closing Date; and
(vi) All other Liabilities arising out of or relating to the Purchased Assets or operation of the Business on or after the Closing.
(b) Notwithstanding anything in this Agreement to the contrary, other than the Assumed Liabilities, Sellers shall retain and be responsible for all Liabilities of Sellers, and neither Buyer nor any Affiliate of Buyer shall assume, or in any way be liable or responsible for or take subject to any Liabilities of the Business, Seller and/or its Affiliates created or any Affiliate of Seller (collectively, the “Retained Liabilities”). Without limiting the foregoing, the Retained Liabilities shall include the following Liabilities of Sellers, whether existing on or not such Liabilities are disclosed in any of the representations and warranties in this Agreement or on any Schedule with respect to such representations and warranties:
(i) All Liabilities prior to the extent arising under, or relating to the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;
(ii) All trade accounts payable with respect to any period prior to Closing to third parties in connection with the Business;
(iii) All Liabilities for (A) Asset Taxes allocable to Sellers pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Sellers pursuant to Section 5.2 and (C) Taxes allocable to Sellers pursuant to Section 5.1;
(iv) All Liabilities to the extent arising out of Sellers or their Affiliates’ employment of the Business Employees prior to Closing, including, but not limited to, all compensation and benefits (including, but not limited to, all salaries, wages and commissions); any benefits due, earned, or accrued pursuant to any Employee Benefit Plan; the employer portion of any employment or payroll Taxes on any of the foregoing; any Liabilities for the termination or severance of any Business Employees by Sellers on or before Closing; and all Losses or Claims by or for the benefit of any Business Employees incurred or arising prior to Closing, Date including, but not limited to any Losses or Claims pursuant to any federal or state labor or employment Laws; provided, that notwithstanding the foregoing, accrued but unpaid vacation and leave shall not be following (the “Retained Liabilities;”):
(va) All any and all Liabilities to the extent arising under any Contracts other than Assigned Contracts;
(vi) Any breach out of this Agreement by Sellers, including, but not limited to, any breach of any warranty, representation, or covenant of Sellers’ contained herein;
(vii) All Liabilities of any kind or nature for fees and expenses referred to in Section 3.8;
(viii) All Liabilities in connection with any matter the conduct or with respect to, ownership of the Divested Business on or arising out of, any events, actions or inactions prior to the Closing Date, Date including all Liabilities with respect but not limited to services provided, products sold and acts or omissions prior to the Closing Date, including Liabilities for personal injury (including deaththose matters disclosed in Exhibit 11.2.9(a), property damage, and warranty claims;
(ixb) All any and all Liabilities to the extent related to the Excluded Assets;
(x) All Liabilities for amounts due in respect of any Taxes of Sellers;
(xi) All Liabilities under applicable Environmental Laws arising out of or relating to Sellers’ ownership or operation Products of the Purchase Assets Divested Business delivered and invoiced to third parties (other than Seller and/or its Affiliates) on or prior to the Closing Date;
(xiic) All Liabilities for (i) Sellers’ exposure of any Person to asbestos containing products manufactured, sold, serviced, repaired or otherwise handled prior to the Closing Date, or (ii) Sellers’ exposure of any Person to asbestos containing equipment or any asbestos all payables accrued on or in the Real Property prior to the Closing Date;
(xiiid) any and all Liabilities for warranties not explicitly assumed by Purchaser and/or its Affiliates under this Agreement or the Exhibits attached hereto;
(e) any and other guarantees provided all Taxes attributable to customers the conduct or ownership of the Divested Business by Seller and the Business and/or its Affiliates on or prior to the Closing Date and related to the time period on or before the Closing Date, other than pursuant to Assigned Contracts;
(xivf) All any and all Liabilities arising under any transferred Contract and those Contracts subject to the provision of Sellers Article 2.1.9 with respect to any present a breach or former Representative default under such transferred Contract committed on or Affiliate of Sellers;
(xv) All Liabilities for violations of Laws by Sellers prior to the Closing Date;
(xvig) All other any and all Liabilities of Seller and/or its Affiliates required by the terms of any transferred Contract to be performed on or prior to the extent Closing Date;
(h) any and all Liabilities resulting from, or relating to, litigation or proceedings relating to events on or prior to the Closing Date; and
(i) any and all Liabilities related to the employees of Seller and/or its Affiliates.
4.2 The Purchaser shall be responsible for paying, performing and discharging when due, and Seller shall not have any responsibility for and shall be held harmless and indemnified by Purchaser with respect to the following Liabilities (the “Assumed Liabilities”):
(a) Any and all Liabilities arising out of or in connection with the conduct or ownership of the Divested Business following the Closing Date, except as explicitly provided otherwise in this Agreement or the Exhibits thereto;
(b) any and all Taxes owed by Purchaser and/or its Affiliates attributable to the conduct or ownership of the Divested Business after the Closing Date and relating to the Purchased Assets prior to time period after the Closing Date that are Date;
(c) any and all Liabilities arising under any transferred Contract with respect to a breach or default under such transferred Contract committed after the Closing Date;
(d) any and all Liabilities required by the terms of any transferred Contract to be performed after the Closing Date; and
(e) any and all other Liabilities expressly assumed by Purchaser pursuant to other provisions in this Agreement. For the avoidance of doubt, the Assumed Liabilities shall exclude any and all liabilities and obligations not Assumed Liabilitiesexpressly assumed by Purchaser under this Agreement.
Appears in 1 contract
Sources: Sale and Purchase Agreement (American Vanguard Corp)
Assumed and Retained Liabilities. (a) At closing Buyer shall On the terms and subject to the conditions set forth in this Agreement and subject to Section 2.6(c), Purchaser agrees to assume only all obligations and liabilities attributable to the following Contract Rights and arising and accruing from and after the Effective Time, and Purchaser agrees to assume at the Closing the obligations of Seller under the debt described on Schedule 2.6(a) attached hereto. The above-described liabilities and obligations are herein referred to as the "Assumed Liabilities."
(b) Purchaser will not assume any Liabilities of Seller to the extent they are not Assumed Liabilities, whether or not set forth on the Schedules hereto or otherwise disclosed in or in connection with this Agreement (collectively, the “Assumed "Retained Liabilities”):", and individually, a "Retained Liability").
(c) Without limiting the generality of Section 2.6(b) and notwithstanding any other provision hereof, each of the following is a Retained Liability of Seller which Purchaser does not assume:
(i) All trade accounts payable with respect to any period on or after Closing to third parties in connection with the Business as conducted on Any of Seller's obligations and after the Closingliabilities under this Agreement;
(ii) All Liabilities arising under Any liabilities or relating obligations, to the Assigned Contracts extent that arise or accrue under such contracts on and after the Closing;
(iii) All Liabilities for (A) Asset Taxes allocable to Buyer pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Buyer pursuant to Section 5.2 and (C) Taxes allocable to Buyer pursuant to Section 5.1;
(iv) All Liabilities arising out of Buyer or its Affiliate’s employment of the Business Employees, including compensation or other similar arrangements (including the employer portion of any employment or payroll Taxes related thereto) and accrued but unpaid vacation and leave, but, for the avoidance of doubt, specifically not any Liabilities arising out of Sellers’ employment of the Business Employees prior to Closing, which shall be Retained Liabilities;
(v) All Liabilities under applicable Environmental Laws arising out of relating to ▇▇▇▇▇’s ownership or operation of the Purchased Assets on or after the Closing Date; and
(vi) All other Liabilities arising out of or relating to the Purchased Assets or operation of the Business on or after the Closing.
(b) Notwithstanding anything in this Agreement to the contrary, other than the Assumed Liabilities, Sellers shall retain and be responsible for all Liabilities of Sellers, and neither Buyer nor any Affiliate of Buyer shall assumeexistence thereof is inconsistent with, or in any way be liable or responsible for or take subject to any Liabilities of the Businessamount thereof exceeds the amount represented in, Seller or any Affiliate of Seller (collectively, the “Retained Liabilities”). Without limiting the foregoing, the Retained Liabilities shall include the following Liabilities of Sellers, whether or not such Liabilities are disclosed in any of the Seller's representations and warranties in this Agreement or on any Schedule with respect to such representations and warranties:or certificate delivered pursuant hereto;
(iiii) All Liabilities to the extent Any liability or obligation arising underby reason of any violation or claimed violation of any federal, state, local or foreign law, rule, regulation, ordinance or any requirement of any governmental authority (including, without limitation, any liability or obligation under or relating to any Environmental Regulations) whether arising before or after the execution and delivery Effective Time;
(iv) Any liability or obligation in respect of this Agreement and any Employee Plan (whether currently existing or arising or accruing hereafter, including without limitation, any liability or obligation relating to the termination of any Employee Plans in connection with the consummation of the transactions contemplated herein) or for income, personal property, sales, use, ad valorem, franchise or other taxes or assessments (including any interest, penalties or additions thereto) owed to any taxing authority, including any taxes arising out of the transactions contemplated hereby other than sales tax attributable to transfer of motor vehicles which shall be borne by this Agreementthe parties pursuant to Section 13.2(a) hereof;
(iiv) All trade Any liability or obligation related to accounts payable with respect owed by Seller and attributable to any period periods prior to the Effective Time (and Seller shall provide Purchaser with evidence at Closing of provisions made therefor to third parties in connection with the Businesssatisfaction of Purchaser);
(iiivi) All Liabilities for Any liability or obligation against which Seller is insured, at least to the extent of such insurance (A) Asset Taxes allocable to Sellers pursuant to Section 5.3(bbut this shall in no way be deemed a limitation or restriction on Seller's liability therefor), (B) Transfer Taxes allocable to Sellers pursuant to Section 5.2 and (C) Taxes allocable to Sellers pursuant to Section 5.1;
(ivvii) All Liabilities to the extent Any liability or obligation of Seller arising out of Sellers or their Affiliates’ employment related to past, present or future litigation involving or relating to Seller or the Acquired Assets, whether the relevant cause of action accrues before or after the Business Employees prior Effective Time;
(viii) Any liability or obligation in respect of any agreement or contract to Closingwhich Seller is a party or to which Seller or any of its assets or properties are otherwise bound, and which is not an Assigned Contract, including, but without limitation, Purchaser does not limited to, all compensation and benefits (including, but not limited to, all salaries, wages and commissions); assume any benefits due, earned, or accrued pursuant to any Employee Benefit Plan; the employer portion liability of any employment or payroll Taxes on Seller under any of the foregoing; any Liabilities for Retained Contracts;
(ix) Any liability or obligation relating to the Acquired Assets and arising from (or attributable to) actions, events or conditions occurring or existing as of or prior to the Effective Time;
(x) Any liability or obligation arising from or relating to the termination or severance of any Business Employees by Sellers on or before Closing; and all Losses or Claims by or for employees of Seller (which are not employees of Purchaser) in connection with the benefit consummation of any Business Employees incurred or arising prior to Closingthe transactions contemplated herein, including, but not limited to without limitation, any Losses liability or Claims pursuant to any federal or state labor or employment Laws; providedobligation under the Worker Adjustment and Retraining Notification Act, that notwithstanding the foregoing, accrued but unpaid vacation and leave shall not be Retained Liabilitiesas amended ("WARN Act");
(vxi) All Liabilities Any liability or obligation under the Contracts or associated with the Contract Rights, or any of them, accruing or attributable to periods prior to the extent arising under any Contracts other than Assigned ContractsEffective Time;
(vixii) Any breach of this Agreement by Sellers, including, but not limited to, any breach of any warranty, representation, other liability or covenant of Sellers’ contained herein;
(vii) All Liabilities obligation of any kind or nature for fees and expenses referred to in Section 3.8;
(viii) All Liabilities in connection with any matter or with respect to, or arising out of, any events, actions or inactions prior to the Closing Date, including all Liabilities with respect to services provided, products sold and acts or omissions prior to the Closing Date, including Liabilities for personal injury (including death), property damage, and warranty claims;
(ix) All Liabilities to the extent related to the Excluded Assets;
(x) All Liabilities for amounts due in respect of any Taxes of Sellers;
(xi) All Liabilities under applicable Environmental Laws arising out of or relating to Sellers’ ownership or operation of the Purchase Assets on or prior to the Closing Date;
(xii) All Liabilities for (i) Sellers’ exposure of any Person to asbestos containing products manufactured, sold, serviced, repaired or otherwise handled prior to the Closing Date, or (ii) Sellers’ exposure of any Person to asbestos containing equipment or any asbestos on or in the Real Property prior to the Closing Date;
(xiii) Liabilities for warranties and other guarantees provided to customers of Seller and the Business prior to the Closing Date, other than pursuant to Assigned Contracts;
(xiv) All Liabilities of Sellers to any present or former Representative or Affiliate of Sellers;
(xv) All Liabilities for violations of Laws by Sellers prior to the Closing Date;
(xvi) All other Liabilities to the extent arising out of or relating to the Purchased Assets prior to the Closing Date that are which is not an Assumed LiabilitiesLiability under Section 2.6(a).
Appears in 1 contract
Sources: Asset Purchase Agreement (Correctional Services Corp)
Assumed and Retained Liabilities. (a) At closing Buyer shall assume only the following Liabilities (collectively, the “Assumed Liabilities”):
(i) All trade accounts payable with respect to any period on or after Closing to third parties in connection with the Business as conducted on From and after the Closing;, subject to and based upon the representations, warranties, covenants and indemnities contained herein and in any agreement, instrument or document delivered hereunder, the Buyer shall assume the liabilities and obligations identified on Schedule 2.05
(a) (the "Assumed Liabilities"). The Sellers and the Shareholders acknowledge and agree that the assumption of liabilities by the Buyer under this Section 2.05(a) shall not limit, restrict, impair or otherwise affect the right of the Buyer to rely on the representations, warranties and covenants of the Sellers and the Shareholders made in this Agreement and any agreement, instrument or document delivered pursuant hereto or the right of the Buyer to seek indemnification from the Sellers and the Shareholders in accordance with the provisions of Article X of this Agreement. For example, if the Buyer pursuant to this Section 2.05(a) assumes the liabilities related to "A," and there is a breach of a representation, warranty or covenant of the Sellers and the Shareholders with respect to "A," the Buyer shall be entitled to seek indemnification under Article X of this Agreement notwithstanding the Buyer's assumption of the liabilities related to "A."
(b) Except for the liabilities and obligations specifically assumed by the Buyer in accordance with Section 2.05(a), the Buyer does not assume or agree to be responsible for, and shall not be deemed to assume or be responsible for, any liability or obligation of the Sellers and the Shareholders of any kind, nature or description, whether such liabilities or obligations relate to payment, performance or otherwise, are matured or unmatured, known or unknown, contingent or otherwise, fixed or absolute, present, future or otherwise, including: (i) any liability or obligation arising from or relating to any of the Excluded Assets; (ii) All Liabilities arising under any liability or obligation relating to federal, state or local income taxes of the Assigned Contracts that arise or accrue under such contracts on Sellers and after the Closing;
Shareholders; (iii) All Liabilities for (Athe Prudential Retirement Accumulation 401(k) Asset Taxes allocable to Buyer pursuant to Section 5.3(b)Plan in the name of Boon▇ ▇▇▇ources, (B) Transfer Taxes allocable to Buyer pursuant to Section 5.2 Inc. and (C) Taxes allocable to Buyer pursuant to Section 5.1;
also executed by Oak Mountain Energy Corporation; (iv) All Liabilities arising out of Buyer or its Affiliate’s employment of the Business Employees, including compensation or other similar arrangements (including the employer portion of any employment or payroll Taxes related thereto) and accrued but unpaid vacation and leave, but, for the avoidance of doubt, specifically not any Liabilities arising out of Sellers’ employment of the Business Employees prior to Closing, which shall be Retained Liabilities;
(v) All Liabilities under applicable Environmental Laws arising out of relating to legal proceeding known as Apri▇ ▇▇▇▇▇’s ownership ▇▇▇▇ ▇. Beth ▇▇▇rgy Mines, Inc., et al., (including Boon▇ ▇▇▇ources, Inc.), Employers, Claim No. 94-66086, pending before the West Virginia Working Compensation Office of Judges; (v) any liability to Bibb ▇▇▇rgy, Inc. or operation Boon▇ ▇▇▇ipment Company, Inc., or their shareholders, directors, officers, affiliates, successors or assigns, relating to (A) pond fines which may never be mined or removed and (B) acts or omissions of the Purchased Assets on or after the Closing Date; and
(vi) All other Liabilities arising out of or relating Sellers related to the Purchased Assets failure to mine or operation of the Business on or after the Closing.
(b) Notwithstanding anything in this Agreement to the contrary, other than the Assumed Liabilities, Sellers shall retain and be responsible for all Liabilities of Sellers, and neither Buyer nor any Affiliate of Buyer shall assume, or in any way be liable or responsible for or take subject to any Liabilities of the Business, Seller or any Affiliate of Seller (collectively, the “Retained Liabilities”). Without limiting the foregoing, the Retained Liabilities shall include the following Liabilities of Sellers, whether or not such Liabilities are disclosed in any of the representations and warranties in this Agreement or on any Schedule with respect to such representations and warranties:
(i) All Liabilities to the extent arising under, or relating to the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;
(ii) All trade accounts payable with respect to any period prior to Closing to third parties remove coal in connection with the Business;
(iiicontracts identified as items 4 and 5 on Schedule 2.01(e) All Liabilities for (A) Asset Taxes allocable to Sellers pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Sellers pursuant to Section 5.2 and (C) Taxes allocable to Sellers pursuant to Section 5.1;
(iv) All Liabilities to the extent arising out of Sellers or their Affiliates’ employment of the Business Employees prior to Closing, including, but not limited to, all compensation and benefits (including, but not limited to, all salaries, wages and commissions); any benefits due, earned, or accrued pursuant to any Employee Benefit Plan; the employer portion of any employment or payroll Taxes on any of the foregoing; any Liabilities for the termination or severance of any Business Employees by Sellers on or before Closing; and all Losses or Claims by or for the benefit of any Business Employees incurred or arising prior to Closing, including, but not limited to any Losses or Claims pursuant to any federal or state labor or employment Laws; provided, that notwithstanding the foregoing, accrued but unpaid vacation and leave shall not be Retained Liabilities;
(v) All Liabilities to the extent arising under any Contracts other than Assigned Contracts;
(vi) Any breach of this Agreement by Sellers, including, but not limited to, any breach of any warranty, representation, or covenant of Sellers’ contained herein;
(vii) All Liabilities of any kind or nature for fees and expenses referred to in Section 3.8;
(viii) All Liabilities in connection with any matter or with respect to, or arising out of, any events, actions or inactions prior to the Closing Date, including all Liabilities with respect to services provided, products sold and acts or omissions prior to the Closing Date, including Liabilities for personal injury (including death), property damage, and warranty claims;
(ix) All Liabilities to the extent related to the Excluded Assets;
(x) All Liabilities for amounts due in respect of any Taxes of Sellers;
(xi) All Liabilities under applicable Environmental Laws arising out of or relating to Sellers’ ownership or operation of the Purchase Assets on or prior to the Closing Date;
(xii) All Liabilities for (i) Sellers’ exposure of any Person to asbestos containing products manufactured, sold, serviced, repaired or otherwise handled prior to the Closing Date, or (ii) Sellers’ exposure of any Person to asbestos containing equipment or any asbestos on or in the Real Property prior to the Closing Date;
(xiii) Liabilities for warranties and other guarantees provided to customers of Seller and the Business prior to the Closing Date, other than pursuant to Assigned Contracts;
(xiv) All Liabilities of Sellers to any present or former Representative or Affiliate of Sellers;
(xv) All Liabilities for violations of Laws by Sellers prior to the Closing Date;
(xvi) All other Liabilities to the extent arising out of or relating to the Purchased Assets prior to the Closing Date (provided, however, that are not Assumed the Buyer agrees to pay the legal fees of John ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇urred by the Sellers in connection with defending Sellers in any proceeding relating to (A) or (B) above, up to a maximum total amount of $50,000); and (vi) any payments to be made to the employees of the Sellers pursuant to Section 6.08 hereof; and (vii) any liability or obligation of the Sellers or relating to the Business which arises prior to the Closing Date or which arises after the Closing Date as a result of facts or circumstances occurring or existing prior to the Closing Date (collectively, the "Retained Liabilities"); it being expressly acknowledged, understood and agreed that any and all of the Retained Liabilities shall remain the sole responsibility of and shall be retained, paid, performed and discharged by the Sellers and the Shareholders.
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Assumed and Retained Liabilities. (a) At closing Buyer shall As of the Closing, Purchaser will assume only the following Liabilities (collectivelyand thereafter in due course pay and fully satisfy, the “Assumed Liabilities”):
subject to Section 1.3, (i) All trade accounts payable with respect all liabilities arising out of events occurring after the Closing Date related to any period on or after Closing to third parties in connection with the Business as conducted on and or operations of the Business after the Closing;
Closing Date and (ii) All Liabilities obligations of Seller arising under the executory portion as of the Closing Date of all Contracts described on Schedule 1.1.4; provided, however, that Purchaser does not hereby assume any liability or relating obligation for any breach or failure to perform or any alleged breach or alleged failure to perform by Seller under such Contracts prior to the Assigned Contracts that arise or accrue under such contracts on and after Closing (the Closing;
(iii) All Liabilities for (A) Asset Taxes allocable to Buyer pursuant to Section 5.3(b"Assumed Liabilities"), (B) Transfer Taxes allocable to Buyer pursuant to Section 5.2 and (C) Taxes allocable to Buyer pursuant to Section 5.1;
(iv) All Liabilities arising out of Buyer or its Affiliate’s employment of the Business Employees, including compensation or other similar arrangements (including the employer portion of any employment or payroll Taxes related thereto) and accrued but unpaid vacation and leave, but, for the avoidance of doubt, specifically not any Liabilities arising out of Sellers’ employment of the Business Employees prior to Closing, which shall be Retained Liabilities;
(v) All Liabilities under applicable Environmental Laws arising out of relating to ▇▇▇▇▇’s ownership or operation of the Purchased Assets on or after the Closing Date; and
(vi) All other Liabilities arising out of or relating to the Purchased Assets or operation of the Business on or after the Closing.
(b) Notwithstanding anything contained in this Agreement to the contrary, other than the Assumed LiabilitiesPurchaser does not assume or agree to pay, Sellers shall retain and be responsible for all Liabilities of Sellerssatisfy, discharge or perform, and neither Buyer nor will not be deemed by virtue of the execution and delivery of this Agreement or any Affiliate of Buyer shall assumedocument delivered at the Closing pursuant to this Agreement (a "Closing Document"), or in 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 way be liable liability, obligation or responsible for or take subject to any Liabilities indebtedness of the Business, Seller or any Affiliate of Seller, whether primary or secondary, direct or indirect, other than the Assumed Liabilities. Seller will retain and pay, satisfy, discharge and perform in accordance with the terms thereof, all liabilities and obligations of the Business other than the Assumed Liabilities to the extent specifically provided in Section 2.1(a), including without limitation those set forth below (collectively, such liabilities and obligations retained by Seller being referred to herein as the “"Retained Liabilities”). Without limiting the foregoing, the Retained Liabilities shall include the following Liabilities of Sellers, whether or not such Liabilities are disclosed in any of the representations and warranties in this Agreement or on any Schedule with respect to such representations and warranties:"):
(i) All Liabilities all obligations or liabilities of Seller or any predecessor or Affiliate of Seller which relate to any of the Excluded Assets;
(ii) all obligations or liabilities of Seller or any predecessor or Affiliate of Seller relating to Taxes (as hereinafter defined) of Seller (or any predecessor or Affiliate) or with respect to the extent arising underBusiness or otherwise, for all periods, or relating portions thereof, through the Closing;
(iii) all obligations or liabilities for any legal, accounting, investment banking, brokerage or similar fees or expenses incurred by Seller or its Affiliates in connection with, resulting from or attributable to the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement;
(iiiv) All trade accounts payable all liabilities and obligations of Seller with respect to any period return, warranty or similar liabilities relating to Products which were produced or sold by Seller or any predecessor or Affiliate of Seller on or prior to the Closing to third parties Date or which were held in connection with the Business;
(iii) All Liabilities for (A) Asset Taxes allocable to Sellers pursuant to Section 5.3(b), (B) Transfer Taxes allocable to Sellers pursuant to Section 5.2 and (C) Taxes allocable to Sellers pursuant to Section 5.1;
(iv) All Liabilities to the extent arising out of Sellers or their Affiliates’ employment inventory of the Business Employees prior to Closing, including, but not limited to, all compensation and benefits (including, but not limited to, all salaries, wages and commissions); any benefits due, earned, or accrued pursuant to any Employee Benefit Plan; on the employer portion of any employment or payroll Taxes on any of the foregoing; any Liabilities for the termination or severance of any Business Employees by Sellers on or before Closing; and all Losses or Claims by or for the benefit of any Business Employees incurred or arising prior to Closing, including, but not limited to any Losses or Claims pursuant to any federal or state labor or employment Laws; provided, that notwithstanding the foregoing, accrued but unpaid vacation and leave shall not be Retained LiabilitiesClosing Date;
(v) All Liabilities all liabilities and obligations of Seller or any predecessor or Affiliate of Seller for death, personal injury, other injury to persons or property damage resulting from, caused by or arising out of, directly or indirectly, use or exposure to any Products (or any part or component thereof), including without limitation any such liabilities or obligations for failure to warn, or breach of express or implied warranties of merchantability or fitness for any purpose or use, manufactured, sold or serviced by Seller or any predecessor or Affiliate of Seller at any time prior to the extent Closing, or resulting from, caused by or arising under out of, directly or indirectly, the conduct of the Business at any Contracts other than Assigned Contractstime prior to the Closing;
(vi) Any 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 the Business or ownership or lease of any of the Assets or any properties or assets previously used in the Business at any time prior to or on the Closing Date, including without limitation such of the foregoing as constitute, may constitute or are alleged to constitute a tort, breach of this Agreement by Sellerscontract or violation or requirement of any domestic or foreign statute, includinglaw, but not limited ordinance, rule or regulation ("Law") of any domestic or foreign court, government, governmental agency, authority, entity or instrumentality ("Governmental Entity"), or which relate to, any breach result in or arise out of the existence or imposition of any warrantyliability or obligation to remediate or contribute or otherwise pay any amount under or in respect of any environmental, representationsuperfund or other environmental cleanup or remedial Laws, occupational safety and health Laws or covenant of Sellers’ contained hereinother Laws;
(vii) All Liabilities all liabilities and obligations of Seller or any kind predecessor or nature for fees Affiliate of Seller in respect of claims, actions, suits, proceedings and expenses referred investigations relating to in Section 3.8;
(viii) All Liabilities in connection with any matter or with respect to, or arising out of, any eventsdirectly or indirectly, actions the conduct of the Business or inactions prior to the Closing Date, including all Liabilities with respect to services provided, products sold and acts ownership or omissions prior to the Closing Date, including Liabilities for personal injury (including death), property damage, and warranty claims;
(ix) All Liabilities to the extent related to the Excluded Assets;
(x) All Liabilities for amounts due in respect lease of any Taxes of Sellers;
(xi) All Liabilities under applicable Environmental Laws arising out of or relating to Sellers’ ownership or operation of the Purchase Assets on or prior to the Closing Date;
(xiiviii) All Liabilities all claims for severance, other employee benefits (iincluding without limitation benefits mandated by Law) Sellers’ exposure or other compensation or damages by or on behalf of any Person Employees or Former Employees (as hereinafter defined) or by or on behalf of any Governmental Entity in respect of Employees or Former Employees involving any alleged employment loss, violation of any Law or termination of employment actually or constructively (by operation of Law or pre-existing Contract, including without limitation any liability for severance), all liabilities and obligations of Seller or any predecessor or Affiliate of Seller with respect to asbestos containing products manufactured, sold, serviced, repaired or otherwise handled prior to Employees and Former Employees under Employee Plans (as hereinafter defined) and any Employee Plan that is an employee welfare benefit plan within the Closing Datemeaning of Section 3(1) of ERISA (as hereinafter defined), or (ii) Sellers’ exposure in respect of any Person payments for unemployment compensation or unemployment insurance, and all other obligations in respect of Employees and Former Employees, all relating to asbestos containing equipment or any asbestos periods of employment ending on or in the Real Property prior to the Closing Date;
(xiiiix) Liabilities for warranties and other guarantees provided to customers all accounts payable owed by Seller or any Affiliate of Seller and the Business prior to the Closing Date, other than pursuant to Assigned Contracts;
(xiv) All Liabilities of Sellers to any present or former Representative or Affiliate of Sellers;
(xv) All Liabilities for violations of Laws by Sellers prior to the Closing Date;
(xvi) All other Liabilities to the extent arising out of or relating to the Purchased Assets prior to the Closing Date that are not Assumed LiabilitiesBusiness; and
(x) all liabilities and obligations in respect of indebtedness for borrowed money.
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