Assumed Liabilities and Excluded Liabilities. (a) Subject to the terms and conditions set forth in this Agreement, the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall assume and become responsible for the following liabilities and obligations of the Seller Group existing as of such time and arising from the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable (collectively, the “Assumed Liabilities”): (i) All liabilities and obligations under the Assumed Real Property Leases and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure Costs; (ii) All liabilities and obligations with respect to any gift cards outstanding on the Closing Date, and in the event that the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing Date; (iii) All liabilities and obligations with respect to Inventory returned to the Stores after the Closing Date; (iv) All liabilities and obligations with respect to the Transferred Employees, to the extent set forth in Section 7.6; (v) All liabilities and obligations of the Seller Group relating to real property, personal property, sales and use and other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working Capital; (vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account in the calculation of the Final Closing Net Working Capital; (vii) All obligations under the letters of credit set forth on Schedule 2.3(a)(vii) (the “Assumed Letters of Credit”); and (viii) All Wind Down Obligations in accordance with Section 2.4. (b) Except for the Assumed Liabilities, the Buyer shall not be subject to and shall not assume nor be liable for any liabilities of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Seller Group or related to the Assets or the Business, including the following (collectively, the “Excluded Liabilities”): (i) Any obligation or liability in respect of Outstanding Indebtedness, other than the Assumed Letters of Credit; (ii) Subject to Section 2.3(a)(v) and Section 2.6, any obligation or liability of the Seller Group for Taxes; (iii) Any pre-petition obligation or liability of the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed Liabilities; (iv) Any obligation or liability under the Excluded Real Property Leases or the Excluded Contracts; (v) Any obligation or liability in respect of professional fees and expenses incurred by the Sellers prior to the Closing Date; (vi) Any obligation or liability in respect of any contingent or success-based fees payable by the Sellers in connection with the Closing pursuant to any Contract entered into by the Sellers prior to the Closing Date; (vii) Any obligation or liability in respect of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan or any grant or award under either such Plan; (viii) Any obligation or liability of the Seller Group to their respective shareholders or equity holders or Affiliates of the Seller Group; (ix) Any obligation or liability relating to any current or former employee of the Seller Group, or their dependents and beneficiaries, other than the obligations and liabilities set forth in Section 7.6.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Borders Group Inc), Asset Purchase Agreement, Asset Purchase Agreement
Assumed Liabilities and Excluded Liabilities. (ai) Subject The Concessionaire agrees to assume and discharge or perform when due, all debts, liabilities and obligations whatsoever relating to the terms and conditions System or the System Operations that occur, arise out of or relate to, or are based on facts or actions occurring, during the Term, but only to the extent such debts, liabilities or obligations do not arise from or relate to any breach by the City of any covenant, representation or warranty set forth in this Agreement, the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall assume and become responsible for the following liabilities and obligations of the Seller Group existing as of such time and arising from the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable Agreement (collectively, the “Assumed Liabilities”):
(i) All liabilities and obligations under ); provided that the Assumed Real Property Leases and Assumed Contracts that are assumed and assigned to Liabilities shall not include the Buyer Excluded Liabilities as defined in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure Costs;paragraph (ii).
(ii) All Except as noted in Section 3.2(c)(iii), the Excluded Liabilities shall consist of any debts, liabilities and obligations: (A) with respect to the City’s obligations under this Agreement, which the City shall perform and discharge when due; (B) arising out of System Operations (including with respect to any gift cards outstanding on Municipal Service Agreements and System Contracts) prior to the Time of Closing, which the City shall perform and discharge when due; (C) relating to any System Bonds or any other debt or obligations related to the System and incurred by the City or the defeasance thereof, which the City shall perform and discharge; or (D) violations arising under any Environmental Law and solely related to (1) the ownership, operation or condition of the System at any time prior to the Time of Closing Dateor (2) any Hazardous Substance contaminant that was released at, and in on, under or from the event that System at any time prior to the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing Date;Time of Closing.
(iii) All liabilities costs and obligations with respect to Inventory returned expenses (including, without limitation, capital improvements) related to the Stores after the Closing Date;
(iv) All liabilities and obligations with respect to the Transferred Employees, to the extent remediation of violations set forth in Section 7.6;
(v) All liabilities the EPA Administrative Orders are Required Capital Improvements to be undertaken at the sole cost and obligations expense of the Seller Group relating to real propertyConcessionaire, personal property, sales are Assumed Liabilities and use and other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working Capital;
(vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account in the calculation of the Final Closing Net Working Capital;
(vii) All obligations under the letters of credit set forth on Schedule 2.3(a)(vii) (the “Assumed Letters of Credit”); and
(viii) All Wind Down Obligations in accordance with Section 2.4.
(b) Except for the Assumed Liabilities, the Buyer shall are not be subject to and shall not assume nor be liable for any liabilities of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Seller Group or related to the Assets or the Business, including the following (collectively, the “Excluded Liabilities”):
(i) Any obligation or liability in respect of Outstanding Indebtedness, other than the Assumed Letters of Credit;
(ii) Subject to Section 2.3(a)(v) and Section 2.6, any obligation or liability of the Seller Group for Taxes;
(iii) Any pre-petition obligation or liability of the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed Liabilities;
(iv) Any obligation or liability under the Excluded Real Property Leases or the Excluded Contracts;
(v) Any obligation or liability in respect of professional fees and expenses incurred by the Sellers prior to the Closing Date;
(vi) Any obligation or liability in respect of any contingent or success-based fees payable by the Sellers in connection with the Closing pursuant to any Contract entered into by the Sellers prior to the Closing Date;
(vii) Any obligation or liability in respect of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan or any grant or award under either such Plan;
(viii) Any obligation or liability of the Seller Group to their respective shareholders or equity holders or Affiliates of the Seller Group;
(ix) Any obligation or liability relating to any current or former employee of the Seller Group, or their dependents and beneficiaries, other than the obligations and liabilities set forth in Section 7.6.
Appears in 2 contracts
Sources: Concession and Lease Agreement, Concession and Lease Agreement
Assumed Liabilities and Excluded Liabilities. (ai) Subject The Concessionaire agrees to assume and discharge or perform when due, all debts, liabilities and obligations whatsoever relating to the terms and conditions Metered Parking System or the Metered Parking System Operations that occur, arise out of or relate to, or are based on facts or actions occurring, during the Term, but only to the extent such debts, liabilities or obligations do not arise from or relate to any breach by any Government Party of any covenant, representation or warranty set forth in this Agreement, the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall assume and become responsible for the following liabilities and obligations of the Seller Group existing as of such time and arising from the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable Agreement (collectively, the “Assumed Liabilities”):
(i) All liabilities and obligations under ); provided that the Assumed Real Property Leases and Assumed Contracts that are assumed and assigned to Liabilities shall not include the Buyer Excluded Liabilities as defined in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure Costs;paragraph (ii).
(ii) All The Excluded Liabilities shall consist of any debts, liabilities and obligations: (A) with respect to the such Government Party’s obligations under this Agreement, which each respective Government Party shall perform and discharge when due; (B) arising out of Metered Parking System Operations (including with respect to any gift cards outstanding on the Closing Date, and in the event that the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing Date;
(iiiMetered Parking System Contracts) All liabilities and obligations with respect to Inventory returned prior to the Stores after Time of Closing, which the Closing Date;
Authority shall perform and discharge when due; and (ivC) All liabilities and obligations with respect to the Transferred Employees, to the extent set forth in Section 7.6;
(v) All liabilities and obligations of the Seller Group relating to real property, personal property, sales and use and Revenue Bonds or any other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working Capital;
(vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account in the calculation of the Final Closing Net Working Capital;
(vii) All debt or obligations under the letters of credit set forth on Schedule 2.3(a)(vii) (the “Assumed Letters of Credit”); and
(viii) All Wind Down Obligations in accordance with Section 2.4.
(b) Except for the Assumed Liabilities, the Buyer shall not be subject to and shall not assume nor be liable for any liabilities of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Seller Group or related to the Assets Metered Parking System and incurred by any Government Party or the Businessdefeasance thereof, including which the following Government Party who incurred such debt or obligation shall discharge; and (collectively, the “Excluded Liabilities”):
(iD) Any obligation or liability in respect of Outstanding Indebtedness, other than the Assumed Letters of Credit;
(ii) Subject to Section 2.3(a)(v) arising under any Environmental Law and Section 2.6, any obligation or liability of the Seller Group for Taxes;
(iii) Any pre-petition obligation or liability of the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code related to the extent not specifically included in ownership, operation or condition of (1) the Assumed Liabilities;
(iv) Any obligation or liability under the Excluded Real Property Leases or the Excluded Contracts;
(v) Any obligation or liability in respect of professional fees and expenses incurred by the Sellers Metered Parking System at any time prior to the Time of Closing Date;
or (vi2) Any obligation any Hazardous Substance or liability in respect of other contaminant that was present or released on or migrated or escaped or was released from the Metered Parking System or otherwise existed at any contingent or success-based fees payable by the Sellers in connection with the Closing pursuant to any Contract entered into by the Sellers time prior to the Time of Closing Date;
(vii) Any obligation and including any known or liability in respect unknown environmental conditions that existed prior to the Time of Closing the Sellers’ Key Employee Retention Planmanifestation of which occurs following the Time of Closing, Key Employee Incentive Plan or any grant or award under either such Plan;
(viii) Any obligation or liability of which environmental obligations the Seller Group to their respective shareholders or equity holders or Affiliates of the Seller Group;
(ix) Any obligation or liability relating to any current or former employee of the Seller Group, or their dependents City shall perform and beneficiaries, other than the obligations and liabilities set forth in Section 7.6discharge when due.
Appears in 1 contract
Sources: Concession Agreement
Assumed Liabilities and Excluded Liabilities. (a) Subject 7.1 The Purchaser undertakes with the Seller that it shall, from Completion:
7.1.1 duly and properly perform, assume and pay and discharge when due any and all Assumed Liabilities; and
7.1.2 indemnify and hold harmless the Seller and each of its Affiliates against any and all Assumed Liabilities and any and all Costs suffered or incurred by any of them as a result of or relating to the terms and conditions set forth any such Assumed Liabilities.
7.2 Nothing in this Agreement, agreement shall make the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall Purchaser assume and become responsible for the following liabilities and obligations any liability for:
7.2.1 any indebtedness of the Seller Group existing as outstanding at the close of such time and arising from business on Completion; or
7.2.2 any breach of contract, negligence, breach of duty or other circumstance giving rise to liability to any third party which is attributable to any act, neglect or default of the operation Seller in the course of the Business prior to Completion.
7.3 The Seller undertakes with the Closing or the other date or dates provided in Section 1.4Purchaser that it shall:
7.3.1 duly and properly perform, as applicable (collectively, the “Assumed assume and pay and discharge when due any and all Excluded Liabilities”):
(i) All liabilities and obligations under the Assumed Real Property Leases and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure Costs;
(ii) All liabilities and obligations with respect to any gift cards outstanding on the Closing Date, and in the event that the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing Date;
(iii) All liabilities and obligations with respect to Inventory returned to the Stores after the Closing Date;
(iv) All liabilities and obligations with respect to the Transferred Employees, to the extent set forth in Section 7.6;
(v) All liabilities and obligations of the Seller Group relating to real property, personal property, sales and use and other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working Capital;
(vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account in the calculation of the Final Closing Net Working Capital;
(vii) All obligations under the letters of credit set forth on Schedule 2.3(a)(vii) (the “Assumed Letters of Credit”); and
(viii) All Wind Down Obligations in accordance with Section 2.47.3.2 indemnify and hold harmless the Purchaser and each of its Affiliates against any and all Excluded Liabilities and any and all Costs suffered or incurred by any of them as a result of or relating to any such Excluded Liabilities.
(b) Except for 7.4 The Purchaser undertakes with the Assumed LiabilitiesSeller that, at any time and from time to time after Completion, it will, at the Buyer shall not be subject to and shall not assume nor be liable for any liabilities of any kind or nature, whether absolute, contingent, accrued, known or unknown, cost of the Purchaser, execute and deliver all such further documents of assumption and acknowledgement and/or take such other action as the Seller may reasonably request in order to effect the release and discharge in full of the relevant member of the Seller’s Group or related to the Assets from any Assumed Liabilities or the Business, including the following (collectively, the “Excluded Liabilities”):
(i) Any obligation or liability in respect of Outstanding Indebtedness, other than the Assumed Letters of Credit;
(ii) Subject to Section 2.3(a)(v) and Section 2.6, any obligation or liability of the Seller Group for Taxes;
(iii) Any pre-petition obligation or liability of the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed Liabilities;
(iv) Any obligation or liability under the Excluded Real Property Leases or the Excluded Contracts;
(v) Any obligation or liability in respect of professional fees and expenses incurred assumption by the Sellers prior to Purchaser as the Closing Date;
(vi) Any obligation or liability primary obligor in respect of any contingent Assumed Liabilities in substitution for the relevant member of the Seller’s Group (in each case on a non-recourse basis to any member of the Seller’s Group).
8.1 All periodical charges and outgoings attributable to the Business and which are not otherwise provided for pursuant to the terms of the Business Premises Licence shall be apportioned on a time basis so that that part of the relevant charges attributable to the period ending on (and including) the Completion Date shall be borne by Seller (or, in the case of the Employees, Tesco) and such part of the relevant charges attributable to the period commencing on the day following the Completion Date shall be borne by the Purchaser.
8.2 Prepayments and payments in advance made to the Seller on or success-based fees before the Completion Date in respect of services to be supplied by the Purchaser after the Completion Date shall be payable by the Sellers Seller to the Purchaser and prepayments and payments in advance made by the Seller in respect of services contracted for but not rendered in connection with the Closing pursuant to any Contract entered into by the Sellers Business prior to the Closing Date;Completion Date shall be refundable by the Purchaser to the Seller.
(vii) Any obligation or liability in respect of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan or any grant or award under either such Plan;
(viii) Any obligation or liability of the 8.3 The Seller Group to their respective shareholders or equity holders or Affiliates of the Seller Group;
(ix) Any obligation or liability shall cause a draft Apportionment Schedule relating to any current or former employee the items in clauses 8.1 and 8.2 to be prepared and available within 15 Business Days of Completion. All amounts included in the Seller GroupApportionment Schedule shall be exclusive of VAT (if any).
8.4 The Seller, or their dependents Tesco, the Purchaser and beneficiaries, other than INC shall use all reasonable endeavours to agree the obligations and liabilities set forth in Section 7.6draft Apportionment Schedule within five Business Days after its preparation.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of the Business of Ivillage Uk Limited (Ivillage Inc)
Assumed Liabilities and Excluded Liabilities. (a) Subject to On the Closing Date, upon the terms and conditions set forth in this Agreementherein (including, for the sake of clarity, Section 8.2(a)(i) hereof), the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall assume and become responsible for agree to pay, perform and discharge, when due, the following liabilities and obligations Liabilities of the Seller Group existing as of such time and arising from Company other than the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable Excluded Liabilities (collectively, the “Assumed Liabilities”):
(i) All liabilities all Liabilities of the Company and obligations under its Affiliates disclosed on or reflected in the Assumed Real Property Leases May 1, 2005 Statement of Net Assets as adjusted for activity that has occurred or may occur between the date of such statement of net assets and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure CostsDate in the ordinary course of business;
(ii) All liabilities except as specified in Section 5.18(a), all Liabilities of the Company and obligations with respect its Affiliates under the Assumed Contracts, other than Liabilities under Assumed Contracts to any gift cards outstanding on the Closing Dateextent that (a) the Assumed Contract is not solely related to the Business, and in (b) the event that Liabilities under such Assumed Contract are not related to the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing DateBusiness;
(iii) All all Liabilities of the Company and its Affiliates related to any and all products of the Business (including product liabilities and obligations with respect or, subject to Inventory returned to the Stores Section 5.20, recall liabilities) which Liabilities arise out of any event or action occurring on or after the Closing DateClosing, regardless of when such product was manufactured or sold;
(iv) All liabilities and obligations except with respect to the Transferred Employees, refunds and replacements related to the extent set forth returns of product which is addressed in Section 7.62.4(a)(xiii), all refund and replacement obligations and all Liabilities related to customer deductions, in each case relating to any and all products of the Business;
(v) All liabilities and obligations except as specified in Section 2.4(b)(v), all Liabilities of the Seller Group relating Company and its Affiliates arising from trade promotion activities or events primarily related to real property, personal property, sales and use and other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working CapitalBusiness (including trade promotion payables or customer deductions);
(vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account except as specified in the calculation Section 2.4(b)(vi), all Liabilities related to committed marketing expenditures or programs of the Final Closing Net Working CapitalBusiness;
(vii) All obligations under all Liabilities related to consumer coupons for products of the letters Business issued on or after the Closing;
(viii) all Liabilities relating to the Transferred Employees as specified in Section 5.18;
(ix) all Liabilities in respect of credit Taxes for which the Buyer is liable pursuant to Section 5.19 and the Assumed Real Estate Taxes;
(x) any Liability created by this Agreement that is the express obligation of the Buyer;
(xi) except as set forth on Schedule 2.3(a)(vii2.4(a)(xi), the second retention payment due under the Employee Retention Agreements entered into with a Transferred Employee;
(xii) the Specified Assumed Environmental Liabilities;
(xiii) subject to Section 5.23, all Liabilities related to the return of products sold by the Business;
(xiv) all Liabilities related to the North Shore East/River Avenue Tax Increment Financing District — Heinz Project and to the Minimum Payment Agreement, as recorded on December 20, 2001 in Allegheny County, Pennsylvania (the “Assumed Letters of CreditTIF Agreement”); and
(viiixv) All Wind Down Obligations in accordance with Section 2.4all Liabilities of the Company and its Affiliates solely to the extent related to the Business and the Acquired Assets.
(b) Except for On the Assumed LiabilitiesClosing Date, the Buyer Company and its Affiliates shall not be subject to retain and remain liable for and shall not assume nor be liable for any liabilities of any kind or naturepay, whether absolute, contingent, accrued, known or unknown, perform and discharge when due the following Liabilities of the Seller Group or related to the Assets or the Business, including the following Company and its Affiliates (collectively, the “Excluded Liabilities”):), none of which shall be Assumed Liabilities:
(i) Any obligation except as specifically set forth in Section 5.18, any Liability arising under or liability in respect related to any Benefit Plan, including any Liability under the Employee Benefits Agreement, dated as of Outstanding IndebtednessJune 12, other than the Assumed Letters of Credit2002, between H.▇. ▇▇▇▇▇ Company and SKF Foods, Inc.;
(ii) Subject to except as otherwise specified in Section 2.3(a)(v2.4(a)(xi) and or Section 2.65.18 of this Agreement, any obligation Liability due to any shareholder, director or liability officer of the Seller Group for TaxesCompany;
(iii) Any pre-petition any Liability created by this Agreement that is the express obligation or liability of the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed LiabilitiesCompany;
(iv) Any obligation or liability under all Liabilities with respect to the Excluded Real Property Leases or trade accounts payable with respect to the Excluded ContractsBusiness resulting from the conduct of the Business prior to the Closing;
(v) Any obligation all liabilities and obligations of the Company and its Affiliates for trade promotion activities or liability in respect of professional fees events (including trade promotion payables and expenses incurred by the Sellers prior customer deductions), to the extent required under GAAP resulting from sales activity completed through the Closing DateDate as reflected on the consolidated balance sheet of the Company as of the Closing Date and whether or not so reflected;
(vi) Any obligation all liabilities and obligations of the Company and its Affiliates for committed marketing expenditure or liability in respect programs, to the extent required under GAAP to be reflected on the consolidated balance sheet of any contingent or success-based fees payable by the Sellers in connection with Company as of the Closing pursuant to any Contract entered into by the Sellers prior to the Closing DateDate and whether or not so reflected;
(vii) Any obligation or liability in respect all Liabilities related to consumer coupons for products of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan Business issued by the Company or any grant or award under either such Planits Affiliates prior to the Closing;
(viii) Any obligation all Liabilities under the Employee Retention Agreements other than the second retention payment due thereunder to Transferred Employees or liability of as set forth on Schedule 2.4(a)(xi) to the Seller Group to their respective shareholders or equity holders or Affiliates of the Seller GroupCompany Disclosure Letter;
(ix) Any obligation or liability relating all Liabilities related to any current or former employee of the Seller GroupBusiness Employees who do not become Transferred Employees and all Liabilities related to the Transferred Employees that arose prior to the Closing, or their dependents and beneficiaries, other than the obligations and liabilities except as specifically set forth in Section 7.65.18;
(x) except as otherwise provided in Sections 2.4(a)(iii) and 2.4(a)(iv) of this Agreement, all Liabilities of the Company and its Affiliates related to any and all products of the Business (including product liabilities) which Liabilities arise out of any event or action occurring prior to the Closing, regardless of when such product was sold;
(xi) any Liability (whether direct or as a result of transferee liability, joint and several liability, contractual liability) of the Company for Taxes (including all income Taxes incurred on, after, or before the Closing Date) unrelated to the Acquired Assets, the Business, or the Transferred Employees (whether accrued on, after, or before the Closing Date and whether or not reserved for in the Closing Working Capital) and any Liability (whether direct or as a result of transferee liability, joint and several liability, contractual liability and whether or not reserved for in the Closing Working Capital) for Taxes (other than Taxes the Buyer is required to pay pursuant to Section 5.19 and Assumed Real Estate Taxes) related to the Acquired Assets, the Business, or the Transferred Employees accrued or otherwise incurred on or before the Closing;
(xii) all Company Retained Environmental Liabilities;
(xiii) all Liabilities solely to the extent pertaining to any of the Excluded Assets;
(xiv) all Liabilities described on Schedule 2.4(b)(xiv) to the Company Disclosure Letter; and
(xv) all Liabilities relating to businesses and divisions of the Company and its Affiliates which do not relate to the Business, the Acquired Assets or Assumed Liabilities, including all Liabilities under Assumed Contracts that are not related to the Business.
Appears in 1 contract
Assumed Liabilities and Excluded Liabilities. (a) Subject to the terms From and conditions set forth in this Agreement, the Buyer hereby agrees that at after the Closing, or such other date or dates provided in Section 1.4, it Buyer shall assume and become responsible for the following in accordance with their respective terms, all responsibilities, duties, liabilities and obligations of the Seller Group existing as of such time and arising from the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable (collectively, the “Assumed Liabilities”):) of (x) the Servicing Party under the Servicing Agreements to the extent arising after the Closing Date and (y) OFLLC under the Assigned Leases and the Shared Services Agreement, in each case to the extent arising after the Closing Date, provided that Buyer shall not hereby or otherwise assume, perform or be liable or responsible in any respect for any Liabilities (the “Excluded Liabilities”) of any Seller or any of its Affiliates other than the Assumed Liabilities, including, without limitation, any Liabilities with respect to, arising from, related to, or in connection with:
(i) All liabilities and obligations under any of the Assumed Real Property Leases and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure CostsExcluded Assets;
(ii) All liabilities any Liabilities arising from the current or former employment of an Employee, including, without limitation: (A) any obligations or Liabilities with respect to compensation or benefits owing to such Employee; (B) any obligations or Liabilities under employment Laws; (C) any obligations, Liabilities or duties owed to any individual or such individual’s dependents or survivors as a result of the individual’s present or former status as an Employee; (D) any obligations, Liabilities or costs associated with claims relating to or in any way arising from the employment of any Employee, the terms, conditions or events pertaining to such employment or the constructive or actual termination of such employment; and (E) any obligations or Liabilities with respect to any gift cards outstanding on the Closing DateEmployment Agreement or Employee Benefit Plan maintained, and in the event that the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing Datesponsored or contributed by any Seller or any of its ERISA Affiliates;
(iii) All liabilities the preparation and obligations with respect delivery of any Compliance Certification covering any period prior to Inventory returned to the Stores after the Closing Date;
(iv) All liabilities the preparation, execution and obligations with respect delivery of any Monthly Report or Monthly Remittance Reports pursuant to the Transferred Employees, Section 6.3(c) or payments directed to the extent set forth in Section 7.6be made to any Seller or its Affiliates pursuant to such Remittance Reports;
(v) All liabilities and obligations of the Seller Group any demands, requests, duties or Liabilities relating to real property, personal property, sales and use and other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working CapitalFormer Borrowers;
(vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account in any Seller’s performance or failure to perform its obligations as the calculation of predecessor Servicing Party under the Final Closing Net Working CapitalServicing Agreements;
(vii) All obligations under purchasing any MH Account from any Securitization Trust (except as may be expressly required by the letters of credit set forth on Schedule 2.3(a)(vii) (related Servicing Agreement to the “Assumed Letters of Credit”extent the successor Servicing Party’s obligation to effect remedial action arose in connection therewith from and after the Closing); and;
(viii) All Wind Down Obligations in accordance with Section 2.4.
(b) Except for the Assumed Liabilities, the Buyer shall not be subject to and shall not assume nor be liable for any liabilities all actual or alleged Liabilities or other responsibilities arising out of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Seller Group or related to any Environmental Law (including actual or alleged liabilities, obligations or other responsibilities for fines, penalties, capital expenditures or operational changes), Hazardous Substance, or Release (including any Hazardous Substance or Release at, to or from any site to which a Hazardous Substance was transported from any real property leased, owned or operated by any Seller or any of its Affiliates at any time) arising out of any Seller’s or its Affiliates’ servicing activities prior to the Assets Closing or Seller’s or its Affiliate’s leasing, ownership or operation of real property at any time prior to the Business, including the following Closing;
(collectively, the “Excluded Liabilities”):
ix) all Liabilities arising out of or relating to any Action that (i) Any obligation is pending, threatened or liability completed as of the Closing with respect to any Seller or any of its Affiliates or (ii) arises out of or relates to actions or omissions of any Seller in respect of Outstanding Indebtedness, its capacity as Servicing Party under the Servicing Agreements or under any other than the Assumed Letters of CreditFacility Documents;
(x) any Tax Liability of any Seller or any of its Affiliates or, subject to Section 6.7(b) hereof, to which the Conveyed Property is subject, in either case, whether or not arising with respect to the Securitization Program or a Third Party Servicing Agreement, including without limitation (i) income taxes (including such income Taxes in connection with the transfer of the Conveyed Property hereunder), (ii) Subject Taxes attributable to Section 2.3(a)(vperiods ending on or prior to the Closing Date or (iii) and Section 2.6, Taxes of any obligation other Person pursuant to an agreement or liability of the Seller Group for Taxesotherwise;
(iiixi) Any pre-petition obligation any Liabilities of any Seller or liability any of its Affiliates under the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in Facility Documents other than the Assumed Liabilities;
(ivxii) Any obligation or liability any and all breaches of representations, warranties and covenants of the Servicing Parties under the Excluded Real Property Leases Servicing Agreements that shall have occurred at any time on or the Excluded Contracts;
(v) Any obligation or liability in respect of professional fees and expenses incurred by the Sellers prior to the Closing Date;
(vi) Any obligation ; provided that Sellers shall remain responsible for effecting such remedial actions to correct or liability in respect of any contingent or success-based fees payable eliminate such breaches as may be required by the Sellers in connection with related Servicing Agreement to the Closing pursuant extent any such remedial action was required to any Contract entered into be taken by the Sellers Servicing Parties thereunder at any time on or prior to the Closing Date, which responsibility shall be deemed to be an Excluded Liability for all purposes hereunder;
(viixiii) Any obligation any and all Liabilities under any lease, license or liability other instrument (other than the Assigned Leases, subject to the terms and conditions set forth herein and in respect the Assignment of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan Leases) granting any Seller or any grant of its Affiliates the right to use or award under either such Planoccupy any asset or property (whether real, personal, tangible, intangible or mixed);
(viiixiv) Any obligation or liability of any and all Liabilities under the Seller Group to their respective shareholders or equity holders or Affiliates of the Seller Group;
(ix) Any obligation or liability relating to any current or former employee of the Seller Group, or their dependents and beneficiariesShared Service Agreement, other than the obligations and liabilities as expressly set forth herein and in Section 7.6the Assignment and Assumption Agreement; or
(xv) any and all Liabilities with respect to, relating to or in connection or otherwise associated with the Platform Assets.
Appears in 1 contract
Assumed Liabilities and Excluded Liabilities. (a) Subject At the Closing, the Company will assume and agree to pay, perform and discharge when due, all Liabilities whether arising prior to or after the Closing, of the Seller and the Parent Designated Affiliates to the terms and conditions extent relating to the Transferred Business or the Transferred Assets, other than the Excluded Liabilities set forth in this Agreement, the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall assume and become responsible for the following liabilities and obligations of the Seller Group existing as of such time and arising from the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable 2.03(b) below (collectively, the “Assumed Liabilities”):), including the following:
(i) All liabilities except as otherwise provided herein or as provided in the Separation Agreement, all Liabilities in respect of the Transferred Employees including accrued vacation, sick leave and obligations under worker’s compensation Claims (other than any Liabilities owed to ▇▇▇▇, ▇▇▇▇▇▇▇ or any other employee of the Assumed Real Property Leases Seller created by Parent without the knowledge and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4acquiescence of ▇▇▇▇, whether at the Closing ▇▇▇▇▇▇▇ or thereafter, including all related Cure Costs▇▇▇▇▇▇▇▇);
(ii) All liabilities and obligations with respect all Liabilities arising from any Actions of the Seller or the Parent Designated Affiliates to any gift cards outstanding on the Closing Date, and in extent such Actions arise from the event that conduct of the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing DateTransferred Business;
(iii) All liabilities and obligations with respect to Inventory returned all Liabilities to the Stores after extent relating to the Closing Datemanufacturing, design and distribution of products of the Transferred Business, including in respect of HiRes 90K cochlear implants that contain the feedthrus made by Astro Seal;
(iv) All liabilities and obligations with respect all accounts payable to the extent relating to the Transferred Employees, to Business or the extent set forth in Section 7.6Transferred Assets;
(v) All liabilities and obligations all Liabilities arising from any non-compliance with Law, including any Law promulgated or enforced by the FDA or any equivalent non-US Governmental Authority or notified body, to the extent such Liabilities arise from the conduct of the Seller Group relating Transferred Business, and any fines, penalties, or similar consequences of enforcement by the FDA or such other equivalent Person to real property, personal property, sales and use and other accrued and unpaid Taxes taken into account in the calculation extent arising from the conduct of the Final Closing Net Working Capital;Transferred Business; and
(vi) All post-petition trade and subject to Section 7.10, all Taxes related to the Transferred Assets other accounts payable and other accrued liabilities taken into account in the calculation of the Final Closing Net Working Capital;
(vii) All obligations under the letters of credit set forth on Schedule 2.3(a)(vii) (the “Assumed Letters of Credit”); and
(viii) All Wind Down Obligations in accordance with Section 2.4than Excluded Taxes.
(b) Except Notwithstanding anything set forth in Section 2.03(a) or any other provision of this Agreement or the Ancillary Agreements to the contrary, and regardless of any disclosure to the Company or the Purchaser, the Seller will retain, and will be responsible for paying, performing and discharging when due, and the Assumed Company will not assume, be obligated to pay, perform or otherwise discharge or have any responsibility for, the following Liabilities, whether arising prior to, at or after the Buyer shall not be subject to and shall not assume nor be liable for any liabilities of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Seller Group or related to the Assets or the Business, including the following Closing (collectively, the “Excluded Liabilities”):
(i) Any obligation or liability in respect of Outstanding Indebtedness, other than the Assumed Letters of Creditall Excluded Taxes;
(ii) Subject all Liabilities to Section 2.3(a)(v) and Section 2.6the extent relating to the Excluded Assets, the Retained Business or any obligation business of Parent or liability of its Affiliates other than the Seller Group for TaxesTransferred Business;
(iii) Any pre-petition obligation or liability obligations of the Seller Group or any of its Affiliates under this Agreement, any Ancillary Agreement, the Merger Agreement, the Amendment Agreement, the Drug Pump Purchase Agreement or any other agreement executed in connection with the transactions contemplated hereby and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed Liabilitiesthereby;
(iv) Any obligation except as otherwise provided herein or liability as provided in the Separation Agreement, Liabilities relating to Employee Plans, including (A) Liabilities for bonuses to Transferred Employees and other employees of the Seller Parties under the Excluded Real Property Leases Seller’s 2007 Performance Incentive Plan and (B) Liabilities owed to ▇▇▇▇, ▇▇▇▇▇▇▇ or any other employee of the Excluded ContractsSeller by Parent or any of its Affiliates other than the Seller and its Subsidiaries;
(v) Any obligation or liability in respect of professional fees and expenses any Liability incurred by the Sellers prior Seller or any of its Affiliates arising out of or relating to the Closing Datenegotiation and preparation of this Agreement and the Ancillary Agreements and other agreements executed in connection with the transactions contemplated hereby and thereby;
(vi) Any obligation or liability in respect any Liability arising out of any contingent or success-based fees payable by the Sellers in connection with the Closing pursuant to any Contract entered into by Parent or its Affiliates (other than the Sellers prior Seller or the Parent Designated Affiliates) in respect of the Transferred Business and without the knowledge and approval of any officer of the Seller who was not appointed by Parent or any of its Affiliates (other than the Seller) except to the Closing Date;extent set forth on Schedule 4.08 or to the extent that the Purchaser elects in writing to assume such Liability and receive the benefit of the corresponding Contract; and
(vii) Any obligation or liability in respect of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan or any grant or award under either such Plan;
(viii) Any obligation or liability of the Seller Group to their respective shareholders or equity holders or Affiliates of the Seller Group;
(ix) Any obligation or liability relating to any current or former employee of the Seller Group, or their dependents and beneficiaries, other than the obligations and liabilities set forth all Liabilities described in Section 7.67.11.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Boston Scientific Corp)
Assumed Liabilities and Excluded Liabilities. (a) Subject At the Closing, the Company will assume and agree to pay, perform and discharge when due, all Liabilities whether arising prior to or after the Closing, of the Seller and the Parent Designated Affiliates to the terms and conditions extent relating to the Transferred Business or the Transferred Assets, other than the Excluded Liabilities set forth in this Agreement, the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall assume and become responsible for the following liabilities and obligations of the Seller Group existing as of such time and arising from the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable 2.03(b) below (collectively, the “Assumed Liabilities”):
), including the following: (i) All liabilities except as otherwise provided herein or as provided in the Separation Agreement, all Liabilities in respect of the Transferred Employees including accrued vacation, sick leave and obligations under worker’s compensation Claims (other than any Liabilities owed to ▇▇▇▇, ▇▇▇▇▇▇▇ or any other employee of the Assumed Real Property Leases Seller created by Parent without the knowledge and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4acquiescence of ▇▇▇▇, whether at the Closing ▇▇▇▇▇▇▇ or thereafter, including all related Cure Costs;
▇▇▇▇▇▇▇▇); 14 (ii) All liabilities and obligations with respect all Liabilities arising from any Actions of the Seller or the Parent Designated Affiliates to any gift cards outstanding on the Closing Date, and in extent such Actions arise from the event that conduct of the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing Date;
Transferred Business; (iii) All liabilities and obligations with respect to Inventory returned all Liabilities to the Stores extent relating to the manufacturing, design and distribution of products of the Transferred Business, including in respect of HiRes 90K cochlear implants that contain the feedthrus made by Astro Seal; (iv) all accounts payable to the extent relating to the Transferred Business or the Transferred Assets; (v) all Liabilities arising from any non-compliance with Law, including any Law promulgated or enforced by the FDA or any equivalent non-US Governmental Authority or notified body, to the extent such Liabilities arise from the conduct of the Transferred Business, and any fines, penalties, or similar consequences of enforcement by the FDA or such other equivalent Person to the extent arising from the conduct of the Transferred Business; and (vi) subject to Section 7.10, all Taxes related to the Transferred Assets other than Excluded Taxes. (b) Notwithstanding anything set forth in Section 2.03(a) or any other provision of this Agreement or the Ancillary Agreements to the contrary, and regardless of any disclosure to the Company or the Purchaser, the Seller will retain, and will be responsible for paying, performing and discharging when due, and the Company will not assume, be obligated to pay, perform or otherwise discharge or have any responsibility for, the following Liabilities, whether arising prior to, at or after the Closing Date;
(the “Excluded Liabilities”): (i) all Excluded Taxes; (ii) all Liabilities to the extent relating to the Excluded Assets, the Retained Business or any business of Parent or its Affiliates other than the Transferred Business; (iii) obligations of the Seller or any of its Affiliates under this Agreement, any Ancillary Agreement, the Merger Agreement, the Amendment Agreement, the Drug Pump Purchase Agreement or any other agreement executed in connection with the transactions contemplated hereby and thereby; (iv) All liabilities except as otherwise provided herein or as provided in the Separation Agreement, Liabilities relating to Employee Plans, including (A) Liabilities for bonuses to Transferred Employees and obligations with respect other employees of the Seller Parties under the Seller’s 2007 Performance Incentive Plan and (B) Liabilities owed to ▇▇▇▇, ▇▇▇▇▇▇▇ or any other employee of the Seller by Parent or any of its Affiliates other than the Seller and its Subsidiaries; 15 (v) any Liability incurred by the Seller or any of its Affiliates arising out of or relating to the negotiation and preparation of this Agreement and the Ancillary Agreements and other agreements executed in connection with the transactions contemplated hereby and thereby; (vi) any Liability arising out of any Contract entered into by Parent or its Affiliates (other than the Seller or the Parent Designated Affiliates) in respect of the Transferred Employees, Business and without the knowledge and approval of any officer of the Seller who was not appointed by Parent or any of its Affiliates (other than the Seller) except to the extent set forth on Schedule 4.08 or to the extent that the Purchaser elects in Section 7.6;
(v) All liabilities writing to assume such Liability and obligations receive the benefit of the Seller Group relating to real property, personal property, sales corresponding Contract; and use and other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working Capital;
(vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account in the calculation of the Final Closing Net Working Capital;
(vii) All obligations under the letters of credit set forth on Schedule 2.3(a)(vii) (the “Assumed Letters of Credit”); and
(viii) All Wind Down Obligations in accordance with Section 2.4.
(b) Except for the Assumed Liabilities, the Buyer shall not be subject to and shall not assume nor be liable for any liabilities of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Seller Group or related to the Assets or the Business, including the following (collectively, the “Excluded Liabilities”):
(i) Any obligation or liability in respect of Outstanding Indebtedness, other than the Assumed Letters of Credit;
(ii) Subject to Section 2.3(a)(v) and Section 2.6, any obligation or liability of the Seller Group for Taxes;
(iii) Any pre-petition obligation or liability of the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed Liabilities;
(iv) Any obligation or liability under the Excluded Real Property Leases or the Excluded Contracts;
(v) Any obligation or liability in respect of professional fees and expenses incurred by the Sellers prior to the Closing Date;
(vi) Any obligation or liability in respect of any contingent or success-based fees payable by the Sellers in connection with the Closing pursuant to any Contract entered into by the Sellers prior to the Closing Date;
(vii) Any obligation or liability in respect of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan or any grant or award under either such Plan;
(viii) Any obligation or liability of the Seller Group to their respective shareholders or equity holders or Affiliates of the Seller Group;
(ix) Any obligation or liability relating to any current or former employee of the Seller Group, or their dependents and beneficiaries, other than the obligations and liabilities set forth all Liabilities described in Section 7.6.7.11. SECTION 2.04
Appears in 1 contract
Sources: Purchase and Sale Agreement
Assumed Liabilities and Excluded Liabilities. (a) Subject to the terms and conditions set forth in this Agreement, the Buyer hereby agrees that at At the Closing, or such other date or dates provided in Section 1.4Buyer shall assume, it shall assume and become responsible for the following agree to pay, perform, fulfill and discharge all debts, claims, obligations and liabilities and obligations of the Seller Group existing as of such time and arising from the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable (collectively, the “"Assumed Liabilities”):
(i) All liabilities and obligations under "); provided, however, that the Assumed Real Property Leases and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure Costs;
(ii) All liabilities and obligations with respect to any gift cards outstanding on the Closing Date, and in the event that the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing Date;
(iii) All liabilities and obligations with respect to Inventory returned to the Stores after the Closing Date;
(iv) All liabilities and obligations with respect to the Transferred Employees, to the extent set forth in Section 7.6;
(v) All liabilities and obligations of the Seller Group relating to real property, personal property, sales and use and other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working Capital;
(vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account in the calculation of the Final Closing Net Working Capital;
(vii) All obligations under the letters of credit set forth on Schedule 2.3(a)(vii) (the “Assumed Letters of Credit”); and
(viii) All Wind Down Obligations in accordance with Section 2.4.
(b) Except for the Assumed Liabilities, the Buyer Liabilities shall not be subject to and shall not assume nor be liable for any liabilities of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Seller Group or related to the Assets or the Business, including include the following (collectively, the “"Excluded Liabilities”"):
(i) Any obligation debts, claims, obligations or liability in respect of Outstanding Indebtedness, other than liabilities to the Assumed Letters of Credit;extent (A) not arising from the Business or (B) relating to any software developed for Seller or the Business by Nth Degree.
(ii) Subject to Section 2.3(a)(v) and Section 2.6, any obligation or Any liability of the Seller Group for Taxes;, including Taxes that could be imposed on account of a disqualification of any employee benefit plan.
(iii) Any pre-petition obligation of Seller's liabilities or liability of obligations under this Agreement or the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed Liabilities;agreements contemplated hereby.
(iv) Any obligation Except as contemplated by Sections 1.5, 5.3, 5.5 and 5.6, any of Seller's liabilities or liability under obligations for expenses or fees incident to or arising out of the Excluded Real Property Leases negotiation, preparation, approval or authorization of this Agreement or the Excluded Contracts;consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys,' accountants,' investment banking, financial advisory, and brokerage fees and expenses).
(v) Any Except with respect to those plans assumed by Buyer pursuant to Section 6.7(a), any liability or obligation under or liability with respect to any Company Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by any member of the controlled group of companies (as such term is defined in Section 414 of the Code) of which Seller is or was a member, or with respect of professional fees and expenses incurred by the Sellers prior to the Closing Date;which Seller or such controlled group member has any liability.
(vi) Any obligation of Seller's liabilities or liability in respect of any contingent obligations for indebtedness for borrowed money, or success-based fees payable by the Sellers in connection with the Closing pursuant to any Contract entered into by the Sellers prior to the Closing Date;guarantees thereof.
(vii) Any obligation liabilities or liability in respect obligations to the extent related to any of the Sellers’ Key Employee Retention PlanExcluded Assets (including under any contracts, Key Employee Incentive Plan leases, commitments or understandings related thereto or any grant fee interest in real estate) or award under either such Plan;the Excluded Liabilities.
(viii) Any liability or obligation to ▇▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇▇ Trust, the ▇▇▇▇▇▇▇▇ Automotive Museum or liability any other director, shareholder or Affiliate of Seller, any individual related by blood or marriage to or beneficiary of any such 8 Person or any entity in which any such Person or individual owns any beneficial interest, except pursuant to the Seller Group Wilshire Lease or the Chicago Lease, and except for the obligation to their respective shareholders or equity holders or Affiliates reimburse ▇▇▇▇▇▇▇▇ for business expenses (so long as ▇▇▇▇▇▇▇▇ gives Buyer written notice thereof prior to the determination of Working Capital pursuant to Section 1.5 and the Seller Group;
(ix) Any obligation or liability relating calculation thereof is adjusted to any current or former employee of the Seller Group, or their dependents and beneficiaries, other than the obligations and liabilities set forth in Section 7.6include all such amounts).
Appears in 1 contract
Assumed Liabilities and Excluded Liabilities. (a) Subject to On the Closing Date, upon the terms and conditions set forth in this Agreementherein (including, for the sake of clarity, Section 8.2(a)(i) hereof), the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall assume and become responsible for agree to pay, perform and discharge, when due, the following liabilities and obligations Liabilities of the Seller Group existing as of such time and arising from Company other than the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable Excluded Liabilities (collectively, the “Assumed Liabilities”):
(i) All liabilities all Liabilities of the Company and obligations under its Affiliates disclosed on or reflected in the Assumed Real Property Leases May 1, 2005 Statement of Net Assets as adjusted for activity that has occurred or may occur between the date of such statement of net assets and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure CostsDate in the ordinary course of business;
(ii) All liabilities except as specified in Section 5.18(a), all Liabilities of the Company and obligations with respect its Affiliates under the Assumed Contracts, other than Liabilities under Assumed Contracts to any gift cards outstanding on the Closing Dateextent that (a) the Assumed Contract is not solely related to the Business, and in (b) the event that Liabilities under such Assumed Contract are not related to the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs outstanding on the Closing DateBusiness;
(iii) All all Liabilities of the Company and its Affiliates related to any and all products of the Business (including product liabilities and obligations with respect or, subject to Inventory returned to the Stores Section 5.20, recall liabilities) which Liabilities arise out of any event or action occurring on or after the Closing DateClosing, regardless of when such product was manufactured or sold;
(iv) All liabilities and obligations except with respect to the Transferred Employees, refunds and replacements related to the extent set forth returns of product which is addressed in Section 7.62.4(a)(xiii), all refund and replacement obligations and all Liabilities related to customer deductions, in each case relating to any and all products of the Business;
(v) All liabilities and obligations except as specified in Section 2.4(b)(v), all Liabilities of the Seller Group relating Company and its Affiliates arising from trade promotion activities or events primarily related to real property, personal property, sales and use and other accrued and unpaid Taxes taken into account in the calculation of the Final Closing Net Working CapitalBusiness (including trade promotion payables or customer deductions);
(vi) All post-petition trade and other accounts payable and other accrued liabilities taken into account except as specified in the calculation Section 2.4(b)(vi), all Liabilities related to committed marketing expenditures or programs of the Final Closing Net Working CapitalBusiness;
(vii) All obligations under all Liabilities related to consumer coupons for products of the letters Business issued on or after the Closing;
(viii) all Liabilities relating to the Transferred Employees as specified in Section 5.18;
(ix) all Liabilities in respect of credit Taxes for which the Buyer is liable pursuant to Section 5.19 and the Assumed Real Estate Taxes;
(x) any Liability created by this Agreement that is the express obligation of the Buyer;
(xi) except as set forth on Schedule 2.3(a)(vii2.4(a)(xi), the second retention payment due under the Employee Retention Agreements entered into with a Transferred Employee;
(xii) the Specified Assumed Environmental Liabilities;
(xiii) subject to Section 5.23, all Liabilities related to the return of products sold by the Business;
(xiv) all Liabilities related to the North Shore East/River Avenue Tax Increment Financing District - Heinz Project and to the Minimum Payment Agreement, as recorded on December 20, 2001 in Allegheny County, Pennsylvania (the “Assumed Letters of CreditTIF Agreement”); and
(viiixv) All Wind Down Obligations in accordance with Section 2.4all Liabilities of the Company and its Affiliates solely to the extent related to the Business and the Acquired Assets.
(b) Except for On the Assumed LiabilitiesClosing Date, the Buyer Company and its Affiliates shall not be subject to retain and remain liable for and shall not assume nor be liable for any liabilities of any kind or naturepay, whether absolute, contingent, accrued, known or unknown, perform and discharge when due the following Liabilities of the Seller Group or related to the Assets or the Business, including the following Company and its Affiliates (collectively, the “Excluded Liabilities”):), none of which shall be Assumed Liabilities:
(i) Any obligation except as specifically set forth in Section 5.18, any Liability arising under or liability in respect related to any Benefit Plan, including any Liability under the Employee Benefits Agreement, dated as of Outstanding IndebtednessJune 12, other than the Assumed Letters of Credit2002, between ▇.▇. ▇▇▇▇▇ Company and SKF Foods, Inc.;
(ii) Subject to except as otherwise specified in Section 2.3(a)(v2.4(a)(xi) and or Section 2.65.18 of this Agreement, any obligation Liability due to any shareholder, director or liability officer of the Seller Group for TaxesCompany;
(iii) Any pre-petition any Liability created by this Agreement that is the express obligation or liability of the Seller Group and any obligation or liability of the Seller Group that constitutes a claim or interest against the Seller Group under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed LiabilitiesCompany;
(iv) Any obligation or liability under all Liabilities with respect to the Excluded Real Property Leases or trade accounts payable with respect to the Excluded ContractsBusiness resulting from the conduct of the Business prior to the Closing;
(v) Any obligation all liabilities and obligations of the Company and its Affiliates for trade promotion activities or liability in respect of professional fees events (including trade promotion payables and expenses incurred by the Sellers prior customer deductions), to the extent required under GAAP resulting from sales activity completed through the Closing DateDate as reflected on the consolidated balance sheet of the Company as of the Closing Date and whether or not so reflected;
(vi) Any obligation all liabilities and obligations of the Company and its Affiliates for committed marketing expenditure or liability in respect programs, to the extent required under GAAP to be reflected on the consolidated balance sheet of any contingent or success-based fees payable by the Sellers in connection with Company as of the Closing pursuant to any Contract entered into by the Sellers prior to the Closing DateDate and whether or not so reflected;
(vii) Any obligation or liability in respect all Liabilities related to consumer coupons for products of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan Business issued by the Company or any grant or award under either such Planits Affiliates prior to the Closing;
(viii) Any obligation all Liabilities under the Employee Retention Agreements other than the second retention payment due thereunder to Transferred Employees or liability of as set forth on Schedule 2.4(a)(xi) to the Seller Group to their respective shareholders or equity holders or Affiliates of the Seller GroupCompany Disclosure Letter;
(ix) Any obligation or liability relating all Liabilities related to any current or former employee of the Seller GroupBusiness Employees who do not become Transferred Employees and all Liabilities related to the Transferred Employees that arose prior to the Closing, or their dependents and beneficiaries, other than the obligations and liabilities except as specifically set forth in Section 7.65.18;
(x) except as otherwise provided in Sections 2.4(a)(iii) and 2.4(a)(iv) of this Agreement, all Liabilities of the Company and its Affiliates related to any and all products of the Business (including product liabilities) which Liabilities arise out of any event or action occurring prior to the Closing, regardless of when such product was sold;
(xi) any Liability (whether direct or as a result of transferee liability, joint and several liability, contractual liability) of the Company for Taxes (including all income Taxes incurred on, after, or before the Closing Date) unrelated to the Acquired Assets, the Business, or the Transferred Employees (whether accrued on, after, or before the Closing Date and whether or not reserved for in the Closing Working Capital) and any Liability (whether direct or as a result of transferee liability, joint and several liability, contractual liability and whether or not reserved for in the Closing Working Capital) for Taxes (other than Taxes the Buyer is required to pay pursuant to Section 5.19 and Assumed Real Estate Taxes) related to the Acquired Assets, the Business, or the Transferred Employees accrued or otherwise incurred on or before the Closing;
(xii) all Company Retained Environmental Liabilities;
(xiii) all Liabilities solely to the extent pertaining to any of the Excluded Assets;
(xiv) all Liabilities described on Schedule 2.4(b)(xiv) to the Company Disclosure Letter; and
(xv) all Liabilities relating to businesses and divisions of the Company and its Affiliates which do not relate to the Business, the Acquired Assets or Assumed Liabilities, including all Liabilities under Assumed Contracts that are not related to the Business.
Appears in 1 contract
Assumed Liabilities and Excluded Liabilities. (a) Subject to the terms and conditions set forth in this Agreement, the Buyer hereby agrees that at the Closing, or such other date or dates provided in Section 1.4, it shall assume and become responsible for the following liabilities and obligations of the Seller Group Sellers existing as of such time and arising from the operation of the Business prior to the Closing or the other date or dates provided in Section 1.4, as applicable (collectively, the “Assumed Liabilities”):
(i) All liabilities and obligations with respect to the FC Debt, estimated at Closing to be approximately $23,500,000, plus any additional amounts related to any additional financing provided by FC Special Funding, LLC to the Debtors after the commencement of these Cases;
(ii) All liabilities and obligations with respect to 503(b)(9) Owned Claims, paid within ten (10) Business Days after such claim is Allowed; provided that the Buyer shall pay the undisputed portion of such 503(b)(9) Owned Claims at the Closing regardless if such Claims have been Allowed as of the Closing;
(iii) That portion of the liabilities and obligations owed as of the Petition Date by the Sellers to each Trade Creditor equal to five (5%) percent of the amount, after reduction for any such Trade Creditor’s 503(b)(9) Owned Claim and 503(b)(9) Consignment Claim, (A) set forth in the Sellers’ bankruptcy schedules; or (B) of such Trade Creditor’s Claim as may otherwise be agreed to by the Buyer and such Trade Creditor, to be paid by December 31, 2015; provided that such Trade Creditor agrees to provide to the Post-Closing Business Trade Terms for no less than one (1) year following the Closing Date;
(iv) That portion of the liabilities and obligations regarding Consignment Goods only as follows:
(1) The amount of $500,000 for Consenting Consignment Vendors that were initial plaintiffs in Adversary Proceeding No. 15-80062 inclusive of the fees and expenses incurred by a professional representing the initial set of plaintiffs in such Adversary Proceeding, upon the voluntary dismissal with prejudice of such initial plaintiffs from the Adversary Proceeding, such dismissal to occur no later than ten (10) Business Days following the Closing Date, to the extent such amount was not already paid by the Sellers prior to the Closing Date;
(2) for each Consenting Consignment Vendor either: Payment Option 1 - their 503(b)(9) Consignment Claim paid within ten (10) Business Days after such claim is Allowed, provided the undisputed portion of any such claim shall be paid at the Closing, plus an amount equal to ten (10%) percent of the Sellers’ book value for such Consenting Consignment Vendor's Consignment Goods that are Transferred Inventory, paid in the month following the month in which such individual items of Transferred Inventory are sold by the Post-Closing Business. In addition, the Buyer will pay ten (10%) percent of the Sellers’ book value for such Consenting Consignment Vendor's Consignment Goods that are sold by the Debtors between June 15, 2015 and the Closing Date, paid no later than thirty (30) days following the Closing Date; or
(3) Consenting Consignment Vendors who fail to select between Option I and Option II on their Ballot for the Plan will be deemed to have selected the Option chosen by the Buyer; and
(4) In either case of Option I or Option II above, Buyer shall have no liability for failure to market or sell any Consignment Goods that are Transferred Inventory, and if any such Consignment Goods remain unsold one (1) year following the Closing Date, the Buyer shall return to each such Consenting Consignment Vendor their respective unsold Consignment Goods that are Transferred Inventory at no further cost or obligation to the Buyer other than the Buyer arranging and paying for shipment to return such Transferred Inventory to the applicable Consenting Consignment Vendor;
(v) All liabilities and obligations as of the Closing Date with respect to the Post-Petition Operating Expenses;
(vi) [Intentionally Blank];
(vii) All liabilities and obligations with respect to Debtor-In-Possession Professional Fees in an amount not to exceed $1,850,000 less the amount of any fees and expenses of such professionals that were already paid as of the Closing, plus the Brookwood Success Fee in an amount not to exceed $615,000;
(viii) All liabilities and obligations with respect to Pre-Closing Creditor Professional Fees in an amount not to exceed $950,000 less the amount of any fees and expenses of such professionals that were already paid as of the Closing;
(ix) All liabilities and obligations with respect to Wind Down Expenses in an amount not to exceed $150,000;
(x) All liabilities and obligations under the Assumed Real Property Leases and Assumed Contracts that are assumed and assigned to the Buyer in accordance with Section 1.4, whether at the Closing or thereafter, including all related Cure Costs, having an estimated value, subject to Section 1.4, of $43,000,000, and the reimbursement of the Designation Period and Post-Closing Occupancy Period amounts set forth in Section 1.4;
(iixi) All liabilities and obligations with respect to any gift cards outstanding on the Closing DateDate and issued by CardFact, Ltd., and in the event that the Going Concern Agency Agreement is executed, all liabilities with respect to other loyalty programs and customer presells outstanding on the Closing Date;
(iiixii) All liabilities and obligations with respect to Inventory returned to the Stores after the Closing Date;
(ivxiii) All liabilities and obligations with respect to the Transferred Employees, including any obligations Sellers may have under the Employee Plans, to the extent set forth in Section 7.67.4;
(vxiv) All obligations to iDLLC as set forth on Schedule 2.3(a)(xiv) (the “iDLLC Obligations”);
(xv) All liabilities and obligations of the Seller Group relating to real property, personal property, sales Debtors and use and other accrued and unpaid Taxes taken into account in their estates for US Trustee quarterly fees for the calculation of the Final Closing Net Working CapitalCases;
(vixvi) All post-petition trade liabilities and other accounts payable and other accrued liabilities taken into account in the calculation obligations with respect to any consumer privacy ombudsman appointed under Section 332 of the Final Closing Net Working CapitalBankruptcy Code in an amount not to exceed $25,000;
(viixvii) All liabilities and obligations under as of the letters Closing Date with respect to donations collected on behalf of credit set forth on Schedule 2.3(a)(viiFamily Christian Resource Centers, Inc.;
(xviii) The amount of $60,000 to be segregated pending resolution of certain local taxing authority claims of the Local Texas Tax Authorities and Henrico County, Virginia as more particularly described in the Sale Order;
(xix) Liabilities and obligations as of the “Assumed Letters Closing Date with respect to Credit Suisse, AG term loan debt, currently held by FC Special Funding, LLC, in the amount of Credit”)$6,000,000; and
(viiixx) All Wind Down Obligations liabilities and obligations as of the Closing Date with respect to pre-petition Taxes that are Allowed claims entitled to priority under the Bankruptcy Code, in accordance with Section 2.4an amount not to exceed $75,000.
(b) Except for the Assumed Liabilities, the Buyer shall not be subject to and shall not assume nor be liable for any liabilities of any kind or nature, whether absolute, contingent, accrued, known or unknown, of the Seller Group Sellers, Giftco, or related to the Assets or the Business, including the following (collectively, the “Excluded Liabilities”):
(i) Any obligation or liability in respect of Outstanding Indebtedness, other than Indebtedness to the extent not specifically included in the Assumed Letters of CreditLiabilities;
(ii) Subject to Section 2.3(a)(v) and Section 2.6, any Any obligation or liability of the Seller Group Sellers for TaxesTaxes to the extent not specifically included in the Assumed Liabilities;
(iii) Any pre-petition obligation or liability of the Seller Group Sellers and any obligation or liability of the Seller Group Sellers that constitutes a claim or interest against the Seller Group Sellers under Sections 502 or 503 of the Bankruptcy Code to the extent not specifically included in the Assumed Liabilities;
(iv) Any Subject to Section 1.4(c), any obligation or liability under in respect of the Excluded Real Property Leases or and the Excluded ContractsContracts to the extent not specifically included in the Assumed Liabilities;
(v) Any obligation or liability in respect of statutory or professional fees and expenses incurred by the Sellers prior Sellers, a creditor, the Committee, any oversight committee established under the Plan, a trustee, an examiner or any other similar party or party in interest in the Cases, to the Closing Dateextent not specifically included in the Assumed Liabilities;
(vi) Any obligation or liability in respect of any contingent or success-success- based fees payable by the Sellers in connection with the Closing pursuant to any Contract entered into by the Sellers prior to the Closing Dateextent not specifically included in the Assumed Liabilities;
(vii) Any obligation or liability in respect of the Sellers’ Key Employee Retention Plan, Key Employee Incentive Plan or any grant or award under either such Plan;
(viii) Any obligation or liability of the Seller Group Sellers to their respective shareholders or equity holders or Affiliates of the Seller GroupSellers, except for the iDLLC Obligations;
(ixviii) Any obligation or liability relating to in respect of any current or former employee of the Seller GroupSellers, or their dependents and beneficiaries, other than the obligations and liabilities set forth in Section 7.67.4;
(ix) Any obligation or liability in respect of any gift cards issued by Giftco;
(x) Any obligation or liability in respect of trade accounts payable to
(xi) Any obligation or liability arising from or related to current litigation involving Sellers, including the matter set forth on Schedule 4.6 regarding Illinois sales Taxes; and
(xii) All liabilities and obligations in respect of Consignment Goods including for the purchase or sale of Consignment Goods by the Sellers, Buyer or the Post-Closing Business, to the extent not specifically included in the Assumed Liabilities pursuant to Section 2.3(a)(iv).
Appears in 1 contract
Sources: Asset Purchase Agreement